Legalizing Plural Marriage

INTRODUCTION: REVISITING POLYGAMY

1. See generally Monte Neil Stewart, Marriage Facts, 31 HARV. J. L. & PUB. POL’Y 313, 334 (2008).

2. See Andersen v. King County, 138 P.3d 963, 1032 (Wash. 2006) (Bridge, J., dissenting).

3. “Civil marriage must be purged of religiously-based man-woman limitations because a civil marriage regime so tainted ‘reflects an impermissible State religious establishment.’” Stewart, supra note 1, at 334, quoting Andersen v. King County, 138 P.3d 963, 1027–28 (Wash. 2006) (Bridge, J., dissenting).

4. Mark Goldfeder, Law, Religion, and Culture, Intertwined, 4 FAULKNER LAW REVIEW (Spring 2013). See, for example, Courtney Megan Cahill, Celebrating the Differences that Could Make a Difference: United States v. Virginia and a New Vision of Sexual Equality, 70 OHIO ST. L. J. 943, 943–44 (2009). See also Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. CHI. L. REV. 281 (2011).

5. Steve Chapman, A Ruling for Polygamy—and Freedom (Jan. 6, 2014), http://reason.com.

6. Goldfeder, id.

7. For a good introduction to and overview of legal debates surrounding First Amendment jurisprudence, see John Witte Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment: Essential Rights and Liberties (Westview, 3d ed. 2011).

8. Reynolds v. United States, 98 U.S. 145 (1878).

9. That is, in some cases of levirate marriage.

10. Ben-Zion Schereschewsky & Menachem Elon, Bigamy and Polygamy, in 3 ENCYCLOPAEDIA JUDAICA (Michael Berenbaum & Fred Skolnik eds., 2d ed. 2007).

11. See Sonja Farnsworth, From Polygamy to Monogamy: Mormonism on Gender, Marriage, and the Family (1999).

12. The Qur’an is one of the few if not the only foundational religious texts to make a practical argument explicitly for monogamy. The verse in Al Qur’an 4:3 reads, “Marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to deal justly (with them), then only one.” Moreover, in the same chapter, Surah An Nisa 129, it is noted that “ye are never able to be fair and just as between women” (AL QUR’AN 4:129). Some have argued then that the practice of polygamy in Islam is meant to be an exception not a rule. Regardless, Islam sets some high preconditions on a plural marriage; the wives have to have no objection, there must be fair and equitable treatment, and the number is not to exceed four. See Abu Ameenah Bilal Philips & Jameelah Jones, Polygamy in Islam (2005).

13. Some of the material in this introduction has appeared in Mark Goldfeder, The Story of Jewish Polygamy, 26 COLUM. J. GENDER & L. 234 (2014), and Goldfeder, It’s Time to Reconsider Polygamy, http://www.cnn.com/2013/12/16/opinion/goldfeder-polygamy-laws/.

14. Jewish law, or Halakha, denotes the entire corpus of the Jewish legal system from its earliest sources in the Bible to contemporary responsa (written decisions and rulings given by legal scholars in response to questions addressed to them). It includes public, private, ritual, and civil law. It legislates not only that which is legal (things that law can compel or prohibit) but also the ethical and moral dimensions of daily life.

15. As a common example, the rabbi, before he rules on the “kosher” permissibility of the chicken, is first supposed to inquire about the finances of the individual asking, taking into account as well the time of day on the Sabbath Eve. See SHULHAN ARUKH, YOREH DEAH 69:6; 11.

16. There was a third such ban that dealt with not opening other people’s mail, but that is not relevant for our purposes.

17. See Mark Goldfeder, The Story of Jewish Polygamy, 26 COLUM. J. GENDER & L. 234 (2014).

18. Id.

19. Children were also a sign of wealth and power. See Robyn Weiss Frisch, Haray Aten Mekudashot Li, A Study of Polygamy in Judaism from Biblical through Rishonic Times (PhD diss., Hebrew Union College, Jewish Institute of Religion, Brookdale Center 2000); and Rachel Biale, Women and Jewish Law: The Essential Texts, Their History & Their Relevance for Today 50 (1984).

20. Solomon, for example, used his marriage alliances with foreign women to establish cordial relations with the nations around him. See Chaim Pearl, Marriage Forms, in JEWISH MARRIAGE 24–25 (Peter Elman ed., 1967).

21. See, for instance, Isaiah 4:1. See also Claire Gottlieb, Varieties of Marriage in the Bible and Their Analogues in the Ancient World 86 (unpublished PhD diss., New York University 1989), quoted in Frisch, HARAY ATEN at 26.

22. See Mishna Avot 5:22.

23. Emily J. Duncan, The Positive Effects of Legalizing Polygamy: Love Is a Many Splendored Thing, 15 DUKE J. GENDER L. & POL’Y 315 (2008).

24. Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. REV. 1504–6 (1997).

25. See Gillian Calder & Lori G. Beaman, eds., Polygamy’s Rights and Wrongs: Perspectives on Harm, Family, and Law chs. 3, 4 (2013).

26. Martha Bailey & Amy J. Kaufman, Polygamy in the Monogamous World: Multicultural Challenges for Western Law and Policy 161 (2010) (hereafter Bailey & Kaufman, Polygamy in the Monogamous World).

27. The official ACLU policy is that “criminal and civil laws prohibiting or penalizing the practice of plural marriage violate constitutional protections of freedom of expression and association, freedom of religion, and privacy for personal relationships among consenting adults.” Policy 91, National ACLU Policy on Polygamy, April 1991 (Current Policy), www.acluutah.org.

28. L. Tribe, American Constitutional Law 521–28 (1978); Sanford Levinson, The Meaning of Marriage: Thinking About Polygamy, 42 SAN DIEGO L. REV. 1049–58 (2005).

29. Richard A. Posner, Sex and Reason 257 (1992).

30. See Richard A. Posner, Should Polygamy Be Legal? Posner’s Comment, BECKER-POSNER BLOG (Oct. 22, 2006, 8:50 PM), www.becker-posner-blog.com.

31. Brown v. Buhman (2013) (Case No. 2:11-cv-0652).

32. See chapter 2 in this text.

33. Goldfeder, “It’s Time to Reconsider Polygamy,” http://www.cnn.com/2013/12/16/opinion/goldfeder-polygamy-laws/.

34. See Emily J. Duncan, The Positive Effects of Legalizing Polygamy: Love Is a Many Splendored Thing, 15 DUKE J. GENDER L. & POL’Y 315 (2008).

35. Id. and Goldfeder, “It’s Time to Reconsider Polygamy,” http://www.cnn.com/2013/12/16/opinion/goldfeder-polygamy-laws/.

36. Duncan, The Positive Effects of Legalizing Polygamy, 315.

37. Id.

38. See Claire A. Smearman, Second Wives’ Club: Mapping the Impact of Polygamy in U.S. Immigration Law, 27 BERKELEY J. INT’L L. 382, 382 (2009).

39. See, for instance, Ortley v. Ross, 78 Neb. 339, 110 N.W. 982, 983 (Sup. Ct. 1907); Hallowell v. Commons, 210 F. 793, 799 (8th Cir. 1914); and In re Dalip Singh Bir’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (Cal. Dist. Ct. App. 1948).

40. Criminal Code of Canada, B.C.S.C. § 293 (2011).

41. The union of one man and one woman.

42. “Numerosity” refers to the number of people in the marital relationship.

43. An individual practices “ethical nonmonogamy” when she or he is engaged in loving, committed, concurrent, consensual relationships with multiple partners.

44. See Sherif Girgis, Ryan T. Anderson & Robert P. George, What Is Marriage? Man and Woman: A Defense 51 (2012).

CHAPTER 1. WHAT IS MARRIAGE? PRIVILEGING FUNCTION OVER FORM

1. See Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 MICH. L. REV. 1803, 1803–79 (1985).

2. See Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989) (hereafter Glendon, The Transformation of Family Law).

3. See, generally, the myriad of articles and editorials on Obergefell v. Hodges, No. 14-556, 2015 WL 2473451(U.S. June 26, 2015), the Supreme Court case that made same-sex marriage a right nationwide.

4. See Adrienne Katherine Wing, Polygamy from Southern Africa to Black Britannia to Black America: Global Critical Race Feminism as Legal Reform for the Twenty-First Century, 11 J. CONTEMP. LEGAL ISSUES 811, 812 (2001) (hereafter Wing, Polygamy). A recent bill in the Kenyan Parliament (Marriage Bill, No. 77 (2012), KENYA GAZETTE SUPPLEMENt No. 179, www.kenyalaw.org), legalizes polygamy, while, in August 2012, the first polygamous civil union was granted in Brazil. See Kate Beioley, First Polygamous Civil Union Granted in Brazil, ARG. INDEP. Aug. 29, 2012, www.argentinaindependent.com.

5. Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at *35–36 (U.S. June 26, 2015).

6. Mark Goldfeder & Elisabeth Sheff, Children of Polyamorous Families: A First Empirical Look, 4 J. SOC. DEVIANCE 150 (2013), at 157.

7. See https://www.ocf.berkeley.edu/~geneq/docs/infoSheets/Polyamory.pdf.

8. See Kirsten Andersen, Polyamory: The Next Civil Rights Movement? LIFE SITE NEWS (Oct. 29, 2012, 4:50 p.m.), www.lifesitenews.com; Stanley Kurtz, Beyond Gay Marriage, 8.45 WEEKLY STANDARD 26, 26–33 (2003). See also Jaime M. Gher, Polygamy and Same-Sex Marriage: Allies or Adversaries within the Same-Sex Marriage Movement, 14 WM. & MARY J. WOMEN & L. 559, 559 (2008). In Utah, polyamorous relationships qualify as cohabitation and thus are treated as polygamy or bigamy. See UTAH CODE ANN. § 76-7-101 (West 1999).

9. In 2012, Loving More, the online polyamory magazine run by the organization Loving More, with the endorsement of the National Coalition for Sexual Freedom (NCSF), conducted a groundbreaking internet-based survey of over four thousand participants who self-identify as polyamorous. From their website: “This is the largest survey of self-identified polyamorous individuals to date. Individuals were recruited through local and regional Listservs, the Loving More e-mail list, the PolyResearchers list, the Institute for Advanced Study of Human Sexuality’s (IASHS) student and alumni lists, and the American Association of Sexuality Educators, Counselors and Therapists’ (AASECT) AltSex list. With the exception of five questions, all the questions were drawn from among those asked in the National Opinion Research Center’s biennial General Social Survey (GSS) in order to compare a sample of the polyamory community with the general U.S. adult population.” Results of this survey are available at www.lovemore.com.

10. See generally Janet Bennion, Polygamy in Primetime: Media, Gender, and Politics in Mormon Fundamentalism (2011) (hereafter Bennion, Polygamy in Primetime); and Project MUSE, http://muse.jhu.edu (last visited Mar. 3, 2013). See also Chelsea Schilling, Love, American Style: Polygamy Gets Sizzle, WND (Aug. 20, 2012, 8:08 p.m.), www.wnd.com (hereafter Schilling, Love, American Style); and Harry Phillips & Sean Dooley, Modern Polygamist Family: Why They’re Risking Jail, ABC News (Nov. 16, 2011), http://abcnews.go.com (hereafter Phillips & Dooley, Modern Polygamist Family). A recent Gallup poll found that the percentage of people who morally approve of polygamy has doubled in the last fifteen years. Sarine Neote, Polygamy and Public Opinion: Is America’s Morality Shifting? LAW STREET, June 3, 2015 (http://lawstreetmedia.com/blogs/culture-blog/polygamy-americas-shift-morality/).

11. See for instance Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth-Century Tragedies 228–29 (1995) (hereafter Fineman, Neutered Mother; Martha M. Ertman, Reconstructing Marriage: An InterSEXional Approach, 75 DENV. U. L. REV. 1215 (1998); and Emily Taylor, Note, Across the Board: The Dismantling of Marriage in Favor of Universal Civil Union Laws, 28 OHIO N.U. L. REV. 171, 174 (2001).

12. See, for example, Elizabeth Brake, Recognizing Care: The Case for Friendship and Polyamory, 1 Syracuse Law & Civic Engagement Forum (2014), and June Carbone, Morality, Public Policy and the Family: The Role of Marriage and the Public/Private Divide, 36 SANTA CLARA L. REV. 267, 281–83 (1996).

13. James Herbie DiFonzo, Unbundling Marriage, 32 HOFSTRA L. REV. 31, 32 (2003) (hereafter DiFonzo, Unbundling Marriage).

14. See L. COMM’N of CAN., Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships 117–24 (2001), available at http://ssrn.com.

15. DiFonzo, at 32. Some have pointed to Justice Scalia’s famous dissent in Lawrence v. Texas (539 U.S. 558, 601–2 [2003]), as neatly making this point:

This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. . . . This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in § 21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

16. Goodridge, 798 N.E.2d at 948.

17. Williams v. North Carolina, 317 U.S. 287, 303 (1942).

18. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888)

19. John Witte Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019 (2001) (hereafter Witte, Goods and Goals of Marriage).

20. All of the studies mentioned in notes 20 through 26 are quoted in Witte, Goods and Goals of Marriage, at 1019, and can be found in the following body of literature: Stephen G. Post, More Lasting Unions: Christianity, the Family, and Society 54–55 (2000); Linda J. Waite, Does Marriage Matter? 32 DEMOGRAPHY 483, 486–87 (1995) (hereafter Waite, Does Marriage Matter?); Linda J. Waite & Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially (2001) (hereafter Waite & Gallagher, Case for Marriage); Barbara Dafoe Whitehead, Dan Quayle Was Right, ATLANTIC MONTHLY, Apr. 1993, at 47; and Barbara Dafoe Whitehead, The Failure of Sexual Education, ATLANTIC MONTHLY, Oct. 1994, at 55 (hereafter Whitehead, Failure of Sexual Education). It is interesting to note that in footnote 10 of his article, Witte points out that the comparative health benefits of monogamous versus polygamous unions has not yet been closely studied by social scientists.

21. See Waite & Gallagher, Case for Marriage, at 50–51; Waite, Does Marriage Matter? at 486–89.

22. Waite & Gallagher, Case for Marriage, at 48, 52, 67.

23. Id. at 111–18; Waite, Does Marriage Matter? at 492–93; Whitehead, Failure of Sexual Education, at 62.

24. See Waite & Gallagher, Case for Marriage, at 47–64.

25. See id. at 114–16; and Waite, Does Marriage Matter? at 495–98.

26. See Waite, Does Marriage Matter? at 493.

27. DiFonzo, Unbundling Marriage, at fn. 49.

28. Id., at 41.

29. See id. at 42 citing to American Psychiatric Association Committee on Gay, Lesbian and Bisexual Issues Position Statements of the American Psychiatric Association: Adoption and Co-Parenting of Children by Same-Sex Couples, Document Reference No. 200214 (Nov. 2002), http://gbge.aclu.org.

30. Am. Psychiatric Ass’n, Position Statement on Adoption and Co-Parenting of Children by Same-Sex Couples (Nov. 2002); quoted in DiFonzo, Unbundling Marriage, at 42n51.

31. Valerie Moller & Gary John Welch, Polygamy, Economic Security, and Well-Being of Retired Zulu Migrant Workers, 5 J. CROSS-CULTURAL GERONTOLOGY 205, 205–16 (1990). In Robert Kilbride, Philip L. Kilbride & Douglas R. Page, Plural Marriage for Our Times: A Reinvented Option? 21 (Kindle ed. 2012) (1994), at 49.

32. Id.

33. Helen Ware, Polygyny: Women’s views in a transitional society, Nigeria 1975. JOURNAL of MARRIAGE and the FAMILY, 41, 185–195.

34. Melissa J. Pashigian, The Womb Infertility and the Vicissitudes of Kin-Relatedness in Vietnam, 4.2 J. VIET. STUD. 34, 33–68 (2009) in Kilbride at 72.

35. B. Cameron Hardy, Solemn Covenant: The Mormon Polygamous Passage 17 (1992).

36. DiFonzo, Unbundling Marriage, at 42.

37. Nancy F. Cott, Public Vows: A History of Marriage and the Nation in DiFonzo, n. 52.

38. Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at *9 (U.S. June 26, 2015).

39. Id.

40. DiFonzo, Unbundling Marriage, at 42. See Cott, Public Vows, at 2.

41. See Katharine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809, 816 (1998). “Marriage is worth strengthening because its popularity and its associations with familial responsibility and commitment to others make it too beneficial a resource to abandon.” See also Robin West, Universalism, Liberal Theory, and the Problem of Gay Marriage, 25 FLA. ST. U. L. REV. 705, 727 (1998).

42. DiFonzo, Unbundling Marriage, at 41.

43. Marriage, MERRIAM-WEBSTER, www.merriam-webster.com (last visited June 2, 2013).

44. Monte Neil Stewart, Marriage Facts, 31 HARV. J. L. & PUB. POL’Y 313, 369 (2008).

45. Martha Albertson Fineman, Why Marriage? 9 VA. J. SOC. POL’Y & L. 239, 242 (2001) (hereafter Fineman, Why Marriage?).

46. Id.

47. See Marjorie Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 204, 204–334 (1982) (hereafter Shultz, Contractual Ordering of Marriage).

48. See Tim B. Heaton, Marital Stability throughout the Child-Rearing Years, 27.1 DEMOGRAPHY 55, 55–63 (1990); see also Matthijs Kalmijn, Father Involvement in Childrearing and the Perceived Stability of Marriage, 61 J. MARRIAGE & FAMILY 409, 409–21 (1999).

49. See Nancy J. Hirschmann and Ulrike Liebert, Women and Welfare: Theory and Practice in the United States and Europe (Brunswick, NJ: Rutgers University Press, 2001), 28. “The family is the institution to which children, the elderly, and the ill are referred–it is the way that the state has effectively privatized dependencies that otherwise might become the responsibility of the collective unit or state.”

50. Id.

51. See Pepper Schwartz, Peer Marriage: How Love between Equals Really Works (1994).

52. See David Seminara, Hello, I Love You, Won’t You Tell Me Your Name: Inside the Green Card Marriage Phenomenon, BACKGROUNDER (2008), www.cis.org.

53. See Lynn D. Wardle, Multiply and Replenish: Considering Same-Sex Marriage in Light of State Interests in Marital Procreation, 24 HARV. J. L. & PUB. POL’Y 771 (2000).

54. See Christopher T. Nixon, Should Congress Revise the Tax Code to Extend the Same Tax Benefits to Same-Sex Couples as Are Currently Granted to Married Couples: An Analysis in Light of Horizontal Equity, 23 S. ILL. U. L. J. 41 (1998).

55. See generally Patricia A. Cain, Imagine There’s No Marriage, 16 Q.L.R. 27 (1996); Ingalill Montanari, From Family Wage to Marriage Subsidy and Child Benefits: Controversy and Consensus in the Development of Family Support, 10.4 J. EUR. SOC. POL’Y 307, 307–33 (2000); Jamal Greene, Divorcing Marriage from Procreation, 114 YALE L. J. 1989, 1989–96 (2005).

56. Linda J. Waite & Evelyn L. Lehrer, The Benefits from Marriage and Religion in the United States: A Comparative Analysis, 29.2 POPULATION & DEV. REV. 255, 255–75 (2004); see also David Ribar, What Do Social Scientists Know About the Benefits of Marriage? A Review of Quantitative Methodologies (2004), http://ftp.iza.org.

57. See Sherif Girgis, Robert P. George & Ryan T. Anderson, What Is Marriage? 34 HARV. J. L. & PUB. POL’Y 245, 245–87 (2010).

58. See id. Marriage is defined as the “union of a man and a woman who make a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. The spouses seal (consummate) and renew their union by conjugal acts—acts that constitute the behavioral part of the process of reproduction.” See also Andrew Koppelman, Is Marriage Inherently Heterosexual? 42 AM. J. JURIS. 51 (1997).

59. See generally Judith A. Seltzer, Families Formed outside of Marriage, 62.4 J. MARRIAGE & FAM. 1247, 1247–68 (2004).

60. Defense of Marriage Act, Pub. L. No. 104–99, 110 Stat. 2419 (codified at 1 U.S.C. § 7 [1997]; 28 U.S.C. § 1738C [1996]) (hereafter referred to as DOMA).

61. See, e.g., Cormac Burke, Does Homosexuality Nullify a Marriage? Canon Law and Recent Developments in Psychology and Psychiatry, in SAME-SEX ATTRACTION: A PARENTS’ GUIDE 33, 34–42 (John F. Harvey & Gerald v. Bradley eds., 2003); see generally Cheshire Calhoun, Making Up Emotional People: The Case of Romantic Love, in THE PASSIONS of LAW 217, 217–240 (Susan A. Bandes ed., 1999) (hereafter Calhoun, Making Up Emotional People).

62. See generally Zhenchao Qian & Samuel H. Preston, Changes in American Marriage, 1972 to 1987: Availability and Forces of Attraction by Age and Education, 58 AM. SOC. REV. 482 (1993).

63. See generally Margaret Mead, Coming of Age in Samoa: A Psychological Study of Primitive Youth for Western Civilisation (1928) and Edward Adamson Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics (1954).

64. See generally Cott, Public Vows; Mary Lyndon Shanley, Review Essay, Public Values and Private Lives: Cott, Davis, and Hartog on the History of Marriage Law in the United States, 27 L. & SOC. INQUIRY 923 (2002).

65. See generally Milton C. Regan Jr., Alone Together: Law and the Meanings of Marriage (1999) (hereafter Regan, Alone Together).

66. See generally Calhoun, Making Up Emotional People, at 217–40. Calhoun argues for recognizing emotion in law, which would open the door to giving equivalent respect to equivalent emotional ties.

67. See Michael Rosensaft, The Right of Men to Change Their Names upon Marriage, 5 U. PA. J. CONST. L. 186 (2002).

68. See Lawrence Zelenak, Marriage and the Income Tax, 67 S. CAL. L. REV. 339 (1993).

69. Marjorie E. Kornhauser, Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax Return, 45 HASTINGS L. J. 63 (1993).

70. Saul Levmore, Love It or Leave It: Property Rules, Liability Rules, and Exclusivity of Remedies in Partnership and Marriage, 58.2 L. & CONTEMP. PROBS. 221, 221–49 (1995).

71. Adam J. Hirsch, Default Rules in Inheritance Law: A Problem in Search of Its Context, 73 FORDHAM L. REV. 1031 (2004).

72. Among the benefits of marriage, Chief Justice Marshall wrote in her Goodridge opinion, is “an automatic ‘family member’ preference to make medical decisions for an incompetent or disabled spouse who does not have a contrary health care proxy.” Goodridge, 798 N.E.2d at 956.

73. See Lenore J. Weitzman, The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards, 28 UCLA L. REV. 1181 (1980); see also Severin Borenstein & Paul N. Courant, How to Carve a Medical Degree: Human Capital Assets in Divorce Settlements, AM. ECON. REV. 992, 992–1009 (1989); and Martha Fineman, Societal Factors Affecting the Creation of Legal Rules for Distribution of Property at Divorce, 22.2 FAM. L.Q. 279 (1989).

74. See Lawrence M. Friedman, The Law of the Living, the Law of the Dead: Property, Succession, and Society, 1966 WIS. L. REV. 340. See also Kristine S. Knaplund, Grandparents Raising Grandchildren and the Implications for Inheritance, 48 ARIZ. L. REV. 1 (2006).

75. See Linda L. Emanuel et al., Advance Directives for Medical Care: A Case for Greater Use, 324.13 NEW ENG. J. MED. 889, 889–95 (1991); see also George J. Annas, The Health Care Proxy and the Living Will, 324.17 NEW ENG. J. MED. 1210, 1210–13 (1991).

76. See Relationship LLC, Marriage Perfected, http://www.relationshipllc.com.

77. See, for example, Jonathan Rauch, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America 35 (2004) (hereafter Rauch, Gay Marriage).

78. See Andrew W. Collins, More than Myth: The Developmental Significance of Romantic Relationships during Adolescence, 13.1 J. RES. ON ADOLESCENCE 1, 1–24 (2003); see also Jeffry H. Larson, The Marriage Quiz: College Students’ Beliefs in Selected Myths About Marriage, FAM. REL. 3, 3–11 (1988).

79. See Ryan Nishimoto, Marriage Makes Cents: How Law & Economics Justifies Same-Sex Marriage: The Gay Rights Question in Contemporary American Law, 23 B.C. THIRD WORLD L. J. 379, 379–99 (2003).

80. Julie Brines & Kara Joyner, The Ties That Bind: Principles of Cohesion in Cohabitation and Marriage, 64 AM. SOC. REV. 333, 333–55 (1999) (hereafter Brines & Joyner, Ties That Bind).

81. See Nicole Constable, A Transnational Perspective on Divorce and Marriage: Filipina Wives and Workers, 10.2 IDENTITIES: GLOBAL STUD. IN CULTURE & POWER 163, 163–80 (2003).

82. See Waite & Gallagher, Case for Marriage.

83. The common conception comes from writings such Plato, Laws, in The Collected Dialogues of Plato, including the Letters 1225, 1350 (Edith Hamilton & Huntington Cairns eds., 1961); quoted in Witte, Goods and Goals of Marriage, at 1022–23. “When advising young men on how to choose a wife, Plato wrote further ‘A man should “court the tie” that is for the city’s good, not that which most takes his own fancy.’”

84. Cicero, De FINIBUS bk. III, ch. 23, § 65 (H. Rackham trans., 1983); quoted in Witte, Goods and Goals of Marriage, 1024.

85. Musonius Rufus, What Is the Chief End of Marriage? in MUSONIUS RUFUS: THE ROMAN SOCRATES 89 (Cora E. Lutz ed. & trans., 1947); quoted in Witte, Goods and Goals of Marriage, at 1024–25.

86. Aristotle, ETHICS, bk. VIII, ch. 12, in THE ETHICS OF ARISTOTLE, 24, 225–26 (J. A. K. Thomson trans., reprinted ed. 1965); quoted in Witte, Goods and Goals of Marriage, at 1023.

87. MIDRASH GENESIS RABBAH, 9:7.

88. From Wikipedia: The Cairo Geniza is a collection of some three hundred thousand Jewish manuscript texts and fragments that were found in the geniza or storeroom of the Ben Ezra Synagogue in Old Cairo, Egypt. It includes both religious and secular writings composed from as early as 870 to as late as 1880 (https://en.wikipedia.org/wiki/CairoGeniza). See S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, vol. I: ECONOMIC FOUNDATIONS. (2000).

89. Id.

90. See id. See also BABYLONIAN TALMUD, Yevamot 61b–64a: “He who has no wife is not a proper man.” And moreover, he lives “without joy, blessing, goodness . . . Torah protection[,] . . . and peace” (62b). Finally, he may not officiate as high priest on the Day of Atonement, BABYLONIAN TALMUD, Yoma 1:1, and ideally not as leader of the services on the High Holy Days. See Isserles to Sh. Ar., OH 581:1, based on BABYLONIAN TALMUD, Yoma 1:1; BABYLONIAN TALMUD, Yevamot 37b.

91. BABYLONIAN TALMUD, Megillah 27a. See also Marriage, in 13 ENCYCLOPEDIA JUDAICA 563, 563–74 (Michael Berenbaum & Fred Skolnik eds., 2d ed. 2007) (hereafter ENCYCLOPEDIA JUDAICA). This entry cites various rabbinic statements about the goods and goals of marriage, including the following: Because of the support it affords her, a woman will tolerate an unhappy marriage rather than remain alone. BABYLONIAN TALMUD, Yevamot 113a; BABYLONIAN TALMUD, Kiddushin 7a. “Hasten to buy land; deliberate before taking a wife” (BABYLONIAN TALMUD, Yevamot 63a). Marriage should not be for money (BABYLONIAN TALMUD, Kiddushin 70a), but a man should seek a wife who is mild tempered, tactful, modest, and industrious (BABYLONIAN TALMUD, Sotah 3b), and who meets other criteria: respectability of family (BABYLONIAN TALMUD, Ta’anit 4:8; BABYLONIAN TALMUD, Baba Bathra 109b); similarity of social background (BABYLONIAN TALMUD, Kiddushin 49a), and of age (BABYLONIAN TALMUD, Yevamot 44a; BABYLONIAN TALMUD, Sanhedrin 76a–b) and beauty (BABYLONIAN TALMUD, Berakoth 57b; BABYLONIAN TALMUD, Yoma 74b); and a scholarly father (BABYLONIAN TALMUD, Pesachim 49b). A man should not betroth a woman until he has seen her (BABYLONIAN TALMUD, Kiddushin 41a). Early marriage is preferred. See Avot 5:21 (eighteen years old). If one is not married by twenty, God curses him (BABYLONIAN TALMUD, Kiddushin 29b–30a). Only a person intensively occupied in Torah study (see, for example, Ben Azzai, 3 Zvi Kaplan, Ben Azzai, Simeon, in ENCYCLOPAEDIA JUDAICA 322–23 [Michael Berenbaum & Fred Skolnik eds., 2d ed. 2007]) may postpone marriage (Yevamot 63b; cf. BABYLONIAN TALMUD, Ketubot 63a; BABYLONIAN TALMUD, Sotah 4b), though in Babylon it was suggested that one should first marry and then study (BABYLONIAN TALMUD, Kiddushin 29b). A practical order of procedure, derived from Deuteronomy (20:5–7), states, “First build a house, then plant a vineyard, and after that marry” (BABYLONIAN TALMUD, Sotah 44a). As far as a girl is concerned, if her father does not find her a husband while she is young (from the age of twelve), she may become unchaste, and he will have transgressed the commandment in Leviticus 19:29: “Profane not thy daughter to make her a harlot” (BABYLONIAN TALMUD, Sanhedrin 76a).

92. Id. For instance: “The husband must deny himself in order to provide for his wife and children (BABYLONIAN TALMUD, Yul. 84b). He must not cause his wife to weep (BM59a). If he loves her as himself and honors her more than himself, he will merit the blessing in Job 5:24: ‘And thou shalt know that thy tent is in peace’ (BABYLONIAN TALMUD, Yevamot 62b). If husband and wife are worthy, God will dwell with them; otherwise, there will be a consuming fire between them (BABYLONIAN TALMUD, Sotah 17a; PdRE 12). The rabbis, like the prophets, use marriage to symbolize other perfect relationships, for instance, God and Israel, Israel and the Torah, and Israel and the Sabbath.”

93. See Mark Goldfeder, The Story of Jewish Polygamy, 26 COLUM. J. GENDER & L. 234 (2014).

94. “From the twelfth century forward, the Church’s doctrine of marriage was categorized, systematized, and refined, notably in Hugh of St. Victor’s, On the Sacraments of the Christian Faith (ca. 1143); Peter Lombard’s Book of Sentences (1150) and Thomas Aquinas’s, Summa Theologiae (ca. 1265–1273) and the scores of thick glosses and commentaries on these texts published in subsequent centuries. From the twelfth century forward, the church’s canon law of marriage was also systematized, first in Gratian’s Decretum (ca. 1140), then in a welter of new papal and conciliar laws that eventually would form the Corpus Iuris Canonici and the backbone of a massive body of canon law jurisprudence. These core theological and legal texts of medieval Catholicism repeated St. Augustine’s formulation of the marital goods of procreation, faith, and sacrament.” Witte, Goods and Goals of Marriage, at 1033.

95. Witte, Goods and Goals of Marriage, at 1031. Witte is quoting Augustine, A Treatise on the Grace of Christ, and on Original Sin, in 5 A SELECT LIBRARY OF NICENE AND POST-NICENE FATHERS OF THE CHRISTIAN CHURCH 213, 251 (Philip Schaff ed., Peter Holmes et al. trans., reprinted ed. 1978) (AD 418).

96. Augustine, The City of God against the Pagans bk. XV, ch. 16, 667 (R. W. Dyson trans. & ed., 1998).

97. Witte, Goods and Goals of Marriage, at 1042. Witte quotes the Second Vatican Council, Gaudium et Spes, in THE DOCUMENTS OF VATICAN II 199, 257 (Walter M. Abbott & Joseph Gallagher trans. & eds., 1966).

98. See Witte, Goods and Goals of Marriage, at 1046–47. Witte quotes from 2 MARTIN LUTHERS WERKE: KRITISCHE GESAMTAUSGABE 167 (1883).

99. For a detailed discussion of these elements in the Western tradition, see John Witte Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (2012), which discusses, in great and clear detail, the elements of Western tradition.

100. See Philip Goodman & Hanna Goodman, THE JEWISH MARRIAGE ANTHOLOGY viii (1965). The Goodmans observe that “Jewish matrimony is not comparable to a ‘sacrament’ performed by a priest, for it is the Jewish bridegroom who weds the bride under the guidance of a rabbi or another qualified person.”

101. See BABYLONIAN TALMUD, Kiddushin 2a–2b. The first step is also called erusin (lit. betrothal, but not in the way that we use it nowadays; the couple would require a divorce after erusin). See also Maimondies, Laws of Marriage ch. 10; Shulchan Aruch EH 55.

102. BABYLONIAN TALMUD, Ketubot 7b, and commentary of Rashi there; Shulchan Aruch, EH 55:1, 6.

103. “The act of nissuin requires that the bride, after completion of the kiddushin, be brought to the bridegroom under the huppah before two competent witnesses, for the marriage proper, that is, the nissu’in according to the law of Moses and of Israel. There are different opinions concerning the import of the term huppah. One view is that the bride must be brought to the home of the groom for the nissu’in (Ran to Ketubot 2a; Beit Shemu’el 55, no. 4), an interpretation forming the basis of the present custom of bringing the bride to a place symbolizing the domain (reshut) of the bridegroom, that is, to the place where a canopy is spread across four poles and where the bridegroom is already waiting. According to another opinion, huppah embraces a private meeting between bridegroom and bride, at a place set aside for the purpose, as an indication of their marriage proper (Ketubot 54b, 56a; Rosh 5:6; Yad Hazakah, Ishut 10:1, 2; Isserles EH 55:1, 61:1; Shulchan Aruch, EH 55:2). In order to dispel doubt, custom requires that, in addition to huppah, the couple also have this private meeting.” ENCYCLOPEDIA JUDAICA.

104. See BABYLONIAN TALMUD, Ketubot 57b.

105. Mishna, Ketubot 5:2.

106. Although the custom was already around much earlier, possibly as early as the seventh century. See also OTZAR HAGEONIM, Ketubot no. 82.

107. See Ronald L. Eisenberg, The JPS Guide to Jewish Traditions 33 (2004).

108. Rashi to BABYLONIAN TALMUD, Ketubot 7b; see also A. Freimann, Seder Kiddushin ve-Nissu’ in AH.AREI H.ATIMAT HA-TALMUD VE-AD YAMEINU (1945).

109. John Calvin, Institutes of the Christian Religion 646–47 (Henry Beveridge trans., 1989) (1536).

110. Crane, A, “Judeo-Christian” Argument for Privatizing Marriage, at 1235.

111. Witte, Goods and Goals of Marriage, at 1054.

112. See id. at 1054. Witte is quoting from John Witte & Thomas C. Arthur, The Three Uses of Law: A Protestant Source of the Purposes of Criminal Punishment? 10 J. L. & RELIGION 433, 434 (1994).

113. See Witte, Goods and Goals of Marriage, at 1055.

114. Id. at 1052 and 1057.

115. Philip Greven, The Protestant Temperament: Patterns of Child-Rearing, Religious Experience, and the Self in Early America (1988).

116. Witte, Goods and Goals of Marriage, at 1064. Witte quotes John Bayley, Marriage as It Is and as It Should Be 13 (1857).

117. See id. at 1066. Witte is quoting 2 Joel Bishop, New Commentaries on Marriage, Divorce, and Separation § 480 (1891).

118. See id. Witte is quoting Joseph Story, Commentaries on the Conflict of Laws § 109 (Morton J. Horowitz & Stanley N. Katz eds., 1972).

119. Id. Witte is quoting 1 Chester Vernier, American Family Laws 45 (1931).

120. See Mark Strasser, Sex, Law, and the Sacred Precincts of the Marital Bedroom: On State and Federal Right to Privacy Jurisprudence, 14 NOTRE DAME J. L. ETHICS & PUB. POL’Y 753 (2000); see also Jed Rubenfeld, The Right of Privacy, HARV. L. REV. 737, 737–807 (1989); Andrew H. Friedman, Same-Sex Marriage and the Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based Definitions of Marriage, 35 HOWARD L .J. 173 (1991).

121. Excluding, in particular, the moment of formation and/or dissolution.

122. There are, of course, exceptions to this norm, as in the cases of abuse and neglect. See Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497, 1504–8 (1983); Fineman, Why Marriage? at 271.

123. Fineman, Why Marriage? at 241.

124. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

125. Katharine K. Baker, Biology for Feminists, 75 CHI.-KENT L. REV. 817 (2000) (hereafter Baker, Biology for Feminists). For explication and critique of this legal deference to the marital entity, see Katharine K. Baker, Property Rules Meet Feminist Needs: Respecting Autonomy by Valuing Connection, 59 OHIO ST. L .J. 1523, 1529–38, 1549–58 (1998) (hereafter Baker, Property Rules Meet Feminist Needs).

126. Id.

127. Baker, Property Rules Meet Feminist Needs, 1526. See Doe v. Doe, 314 N.E.2d 128, 132 (Mass. 1974): “Our law has not in general undertaken to resolve the many delicate questions inherent in the marriage relationship”; and Maguire v. Maguire, 59 N.W.2d 336, 342 (Neb. 1953) (this case held that a state cannot interfere in how to allocate finances between a married couple). “Interspousal immunity doctrine and spousal evidentiary privileges, although both are eroding somewhat, also demonstrate the legal privileges associated with horizontal relationships.” Id. fn. 11. See Anita Bernstein, For and Against Marriage: A Revision, 102 MICH. L. REV. 129, 141 (2003), in which Bernstein “catalogs the benefits that the state confers on marital couples, including special treatment under estate and gift tax laws, exemptions from loss-gain valuations for property transfers between spouses, the ability to file joint tax returns, receipt of benefits granted to military spouses and spouses of civil service employees, evidentiary privileges, receipt of family medical leave from certain large employers, protection under state inheritance, community property and deferred community property laws, standing to recover for loss of consortium (a claim for damages suffered by the spouse or family member of a person who has been injured or killed as a result of the defendant’s negligent, intentional, or otherwise wrongful acts), the ability to hold property in a tenancy by the entirety (a type of concurrent estate in real property held by a married couple, whereby each owns the undivided whole of the property, coupled with the Right of Survivorship, so that upon the death of one, the survivor is entitled to the decedent’s share), and other state-level benefits.” Wilson, Evaluating Marriage. Parents can get government subsidies under the federal Temporary Assistance for Needy Families (TANF) laws, and the Family Leave Act allows spouses and parents to take leave from work when a family member is ill. Family members qualify for Social Security survivor benefits, government health insurance, and pensions. Zoning ordinances favor families over other groups. See Moore v. City of East Cleveland, 431 U.S. 494, 496 (1977); City of Ladue v. Horn, 720 S.W.2d 745, 747 (Mo. App. 1986); David D. Haddock & Daniel D. Polsby, Family as a Rational Classification, 74 WASH. U. L .Q. 15 (1996). Family members also have a special status under rent-control regulations. See Braschi v. Stahl Ass’n, 543 N.E.2d at 49.

128. This is relevant for legal concepts such as estate by entireties. “That husband and wife constitute a legal entity separate and distinct from the component parts of the marital status was recognized as early as the Fourteenth Century. It was so declared by this Court as early as 1837.” Motley v. Whitemore, 94 S.E.2d 466, 468 (1956). See also Fairclaw v. Forrest, 130 F.2d 829 (D.C. Cir. 1942); Farrey v. Sanderfoot, 500 U.S. 291, 303 (1991). Or, for spousal tort immunities (presenting causes of action in tort against a spouse), see U.S. v. Jones, 542 F.2d 661 (6th Cir. 1976).

129. This becomes evident in a tort claim for loss of consortium. The phrase, “loss of consortium” consists of several compensations encompassing not only loss of the performance of material services, aid, and assistance but also loss of such intangibles as love and affection, society, guidance, companionship, and sexual relations. Boynton Beach v. Taylor, 813 So. 2d 1039 (Fla. 4th DCA 2002); Gorman v. McMahon, 792 So. 2d 307 (Miss. Ct. App. 2001), cert. denied. See also, for instance, Morales v. Davis Bros. Const. Co., Inc., 706 So. 2d 1048 (La. Ct. App. 4th Cir. 1998). Note, though, that the emotional injury, no matter how deeply felt, does not give rise to a loss of consortium claim; instead, the existence of the legal relationship between the claimant and the injured party fosters the claim. Bashaway v. Cheney Bros., Inc., 987 So. 2d 93 (Fla. Dist. Ct. App. 1st Dist. 2008). Accordingly, marriage is a central element of the cause of action.

130. Marsha Garrison points out that “Whereas marriage establishes ‘a social institution that rests upon common values and shared expectations for appropriate behavior within the partnership,’ cohabitational relationships lack ‘social blueprints’ and even a nomenclature; cohabitation thus does not produce a consistent meaning for those either within such a relationship or outside it.” Marsha Garrison, The Decline of Formal Marriage: Inevitable or Reversible? 41 FAM. L. Q. 491, 493 (2007) (hereafter Garrison, The Decline of Formal Marriage, quoting Steven L. Nock, A Comparison of Marriages and Cohabiting Relationships, 16 J. FAM. ISSUES 53, 74 (1995) (hereafter Nock, Comparison of Marriages). Yet within this structure, there is still room for expression.

131. Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015).

132. See Regan, Alone Together at 94–95: “Spouses . . . don’t simply help each other construct separate individual identities. . . . They participate in the creation of a shared reality in which each partner’s identity is dependent in part on interaction with the other.” Quoted in Baker, Biology for Feminists, at 818. Note that this is not an argument for reinstating the idea that women need protection (coverture) or should not have equal rights, nor that this should be the case for any other marital partner.

133. Baker, Biology for Feminists, at 818. See Milton C. Regan Jr., Family Law and the Pursuit of Intimacy 96 (1993) (hereafter Regan, Family Law): “Status is the embodiment of [marital] responsibility, a proclamation that certain intimate relationships . . . give rise to obligation because they shape each partner’s sense of self.” See also Karst, Freedom of Intimate Association, at 633: “Some of the primary values of intimate association depend on this sense of collectivity, the shared sense that ‘we’ exist as something beyond ‘you’ and ‘me.’” See Laurence D. Houlgate, Family and State 39 (1988).

134. Baker, Property Rules Meet Feminist Needs, at 1531–32. Baker uses the word “constitutive” but for our purposes it is the definition, outward and inward, that matters. See also Bowers v. Hardwick, 478 U.S. 186 (1986), at 205, where Justice Blackmun, in dissent, noted that “[M]uch of the richness of a relationship will come from the freedom an individual has to choose the form and nature of intensely personal bonds.” In Baker, Property Rules, n. 42.

135. Baker, Property Rules Meet Feminist Needs, at 1532, quoting Regan, Family Law, at 89.

136. See Carl E. Schneider, The Channeling Function in Family Law, 20 HOFSTRA L. REV. 495, 511 (1992), http://scholarlycommons.law.hofstra.edu (hereafter Schneider, Channeling Function), in Baker, Property Rules Meet Feminist Needs, 1532.

137. See Milton C. Regan Jr., Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation, 76 NOTRE DAME L. REV. 1435, 1445 (2001) (hereafter Regan, Calibrated Commitment).

138. Griswold v. Connecticut, 381 U.S. (1965) at 479.

139. See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) (right to make decisions regarding care, custody, and control of one’s children); Griswold, 381 U.S. at 484–85 (citations omitted; right to use contraception); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (internal citations omitted; right of procreation). Daniel S. Greenspahn, A Constitutional Right to Learn: The Uncertain Allure of Making a Federal Case out of Education, 59 S. C. L. REV. 755, 784 (2008).

140. See Mishna Avot 6:2 and accompanying commentators.

141. For one of the first modern thinkers to discover and popularize this principle, see for instance, Barry Schwartz, The Paradox of Choice. New York: Ecco, 2004, and Barry Schwartz et al. Maximizing Versus Satisficing: Happiness Is a Matter of Choice, JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 83.5 (2002): 1178.

142. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (2010).

143. “Given the lack of uniformity in cohabitants’ understandings and behaviors, the mere fact of living together provides little evidence of what understandings a particular relationship has produced. One partner may deeply believe that the relationship is committed; the other may deeply believe the reverse. . . . This basic problem is exacerbated by the range of meanings associated with cohabitation and the fact that cohabitants often do not agree about the nature of their relationship. Researchers have found that, in twenty to forty percent of cohabiting relationships, partners express different views on whether they plan to marry each other. Moreover, in one survey, about a third of the time only one partner felt that the couple spent a lot of time together, and in forty percent of the cases, one partner but not the other reported a high degree of happiness with the relationship.” Marsha Garrison, The Decline of Formal Marriage at 494.

144. See Regan, Calibrated Commitment, at 1439–42; Elizabeth Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, U. CHI. LEGAL F. 225, 240 (2004) (hereafter Scott, Marriage, Cohabitation; Scott observes that “in the aggregate, marriages last longer and produce greater happiness and less conflict than cohabitation unions”); Robin F. Wilson, Evaluating Marriage: Does Marriage Matter to the Nurturing of Children? 42 SAN DIEGO L. REV. 847, 868 (2005) (hereafter Wilson, Evaluating Marriage); Marsha Garrison, Reviving Marriage: Should We? Could We? 19–22, 32–35 (Brooklyn Law Sch. Legal Stud. Research Paper No. 43, 2005), http://papers.ssrn.com (hereafter Garrison, Reviving Marriage); Waite & Gallagher, Case for Marriage; Margaret F. Brinig & Steven L. Nock, Marry Me, Bill: Should Cohabitation Be the (Legal) Default Option? 64 LA. L. REV. 403, 408–9 (2004) (hereafter Brinig & Nock, Marry Me, Bill); and William C. Duncan, The Social Good of Marriage and Legal Responses to Non-Marital Cohabitation, 82 OR. L. REV. 1001, 1005–11 (2003).

145. The disparities in security and relationship quality remain even when comparing married and cohabiting unions of long duration; indeed, the limited research available suggests that “longer cohabitation periods are negatively correlated with relationship stability and quality.” Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815, 846 (2005). Garrison quotes Susan L. Brown, Relationship Quality Dynamics of Cohabiting Unions, 24 J. FAM. ISSUES 583, 598 (2003). See also Marsha Garrison, Marriage Matters: What’s Wrong with the A.L.I.’s Domestic Partnership Proposal, in Reconceiving the Family: Critique of the American Law Institute’s Principles of the Law of Family Dissolution 305, 312 (Robin Fretwell Wilson ed., 2006) (hereafter Garrison, Marriage Matters); and Susan L. Brown & Alan Booth, Cohabitation versus Marriage: A Comparison of Relationship Quality, 58 J. MARRIAGE & FAM. 668, 675 (1996) (hereafter Brown & Booth, Cohabitation versus Marriage).

146. “Compared to married couples of the same duration (i.e., couples who have been together for the same length of time) those in informal (cohabiting) unions are less committed to their partnership . . . and report poorer quality relationships.” Brinig & Nock, Marry Me, Bill, at 409. See also William J. Doherty et al., Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences 13 (2d ed. 2005) (Doherty observes that “couples who live together, on average, report relationships of lower quality than do married couples—with cohabitors reporting more conflict, more violence, and lower levels of satisfaction and commitment”); Margaret F. Brinig, Domestic Partnership and Default Rules, in RECONCEIVING THE FAMILY: CRITIQUE ON THE AMERICAN LAW INSTITUTE’S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION 269, 274–77 (Robin Fretwell Wilson ed., 2006); Brown & Booth, Cohabitation versus Marriage; Garrison, Marriage Matters; Nock, Comparison of Marriages, at 67; and Scott M. Stanley, Maybe I Do: Interpersonal Commitment and Premarital or Nonmarital Cohabitation, 25 J. FAM. ISSUES 496 (2004).

147. See generally Cott, Public Vows. To prove a similar point, Katherine Baker cites to Bruce C. Hafen, The Family as an Entity, 22 U.C. DAVIS L. REV. 865, 874 (1989) (Hafen notes the nineteenth-century legal rationalizations for “society’s interest” in familial relationship); and Jana B. Singer, The Privatization of Family Law, WIS. L. REV. 1443, 1447 (1992) (hereafter Singer, Privatization of Family Law; Singer details the ways the law traditionally granted privileged status to the marital relationship). See also Maynard, 125 U.S. at 211 (this case notes the importance marriage has to the public); and Roscoe Pound, Individual Interests in the Domestic Relations, 14 MICH. L. REV. 177, 178 (1916) (Pound notes that the security of the familial relationship confers economic benefits to society). In Baker, Property Rules Meet Feminist Needs fn. 12.

148. “Formal marriage signals intention. It signals [this intention to] each partner who enters into a new marital union, to their friends, and to their families. It also signals strangers; those who meet or do business with the married couple understand that each spouse has entered into a binding commitment that entails expectations of fidelity, sharing, and lifetime partnership. Formal marriage also signals intention to the state; government officials can and do assume that the married couple has undertaken obligations to each other that justify treating them as an economic unit, assuming that a deceased spouse would want his or her marital partner to obtain the lion’s share of the decedent spouse’s assets. One partner cannot surprise the other by bringing a fraudulent claim, nor can one partner surprise the other by trying to evade a just claim.” Garrison, Decline of Formal Marriage, 493.

149. See Posner, Family Law, at 260. Also on the signaling function of marriage, see Trebilcock, Marriage as a Signal, at 245–55, and William Bishop, Is He Married? Marriage as Information, 34 U. TORONTO L. J. 245 (1984).

150. The marital vows also represent explicit and implicit promises by each spouse to accept a set of responsibilities that will ensure that the other’s dependency needs are met. See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 50–56 (1990) (hereafter Scott, Rational Decisionmaking).

151. Scott, Marriage, Cohabitation, at 245.

152. See Michael Pollard & Kathleen Harris, Cohabitation and Marriage Intensity: Consolidation, Intimacy and Commitment (2013). The authors found that 68 percent of married couples had joint checking accounts as opposed to only 16 percent of cohabitants.

153. “Parties in informal unions can establish financial claims, but it is a cumbersome and uncertain business. . . . Substantial benefits follow if couples in functional family unions formalize their relationships; at that point, the terms of their commitment and the extent of mutual financial obligations are clear and need not be determined through past performance . . . the extent and nature of understandings about financial sharing and support vary in informal unions, and the ability of third parties (i.e., courts) to discern accurately the parties’ expectations on the basis of their conduct in this context is limited.” Scott, Marriage, Cohabitation at 256–257. See generally Friedman v. Friedman, 24 Cal. Rptr. 2d 892, 901 (Cal. Ct. App. 1993); Morone v. Morone, 429 N.E.2d 592 (N.Y. 1992); and Tapley v. Tapley, 449 A.2d 1218 (N.H. 1982), id. fn. 79. “Thus, society quite sensibly might prefer that couples in long-term intimate unions choose marriage rather than cohabitation.” Id. at 252. See also Wilson, Evaluating Marriage at 871.

154. Wilson, Evaluating Marriage. See fn. 149 citing Brines & Joyner, Ties That Bind, at 335. “The antipathy to joint investments makes sense in light of the fragility of cohabiting relationships. As Brines and Joyner explain, ‘When couples choose to cohabit, the choice signals uncertainty and a short-term time horizon, prescribing a cautious approach to the relationship that might produce patterns of sharp bargaining between partners.’” See also p. 875, citing Brines & Joyner, “On the other hand, when high expectations of permanence accompany the decision to share a household . . . these expectations encourage early and frequent joint investments.” And at 872 “Cohabitants often do not combine resources, choosing instead to maintain separate bank accounts and hold property in their separate names.” Wilson, Evaluating Marriage, at 871–72: “All of this adds up to me and me rather than we. This lack of ‘we-ness’ extends beyond the big purchases and life decisions.”

155. Wilson, Evaluating Marriage, at 874. See Melanie B. Leslie, Enforcing Family Promises: Reliance, Reciprocity, and Relational Contract, 77 N.C. L. REV. 551, 577–78 (1999) (Leslie notes how married spouses do not “conduct a series of tit-for-tat transactions”); see also Scott & Scott, Marriage as Relational Contract, at 1251; Paul J. Gudel, Relational Contract Theory and the Concept of Exchange, 46 BUFF. L. REV. 763, 765 (1998); Ian R. Macneil, Relational Contract: What We Do and Do Not Know, WIS. L. REV. 483, 487 (1985). Id., fn. 146.

156. Scott, Marriage, Cohabitation, at 243, citing to Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 LAW & HUM. BEHAV. 439 (1993).

157. Elisabeth Sheff, Polyamorous Families, Same-Sex Marriage, and the Slippery Slope, 40.5 J. CONTEMP. ETHNOGRAPHY 487, 493 (2011) (hereafter Sheff, Polyamorous Families).

158. David D. Meyer, A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption, 51 VILL. L. REV. 891, 909 (2006) (hereafter Meyer, A Privacy Right) quoting Brinig & Nock, Marry Me, Bill, at 408–9.

159. Meyer, A Privacy Right, at 909, citing to Regan, Alone Together, at 1444–45.

160. Meyer, Id. quoting Scott, Marriage, Cohabitation, at 241. Scott goes on to note that “Marriage is an institution that has a clear social meaning and is regulated by a complex set of social norms that promote cooperation between spouses—norms such as fidelity, loyalty, trust, reciprocity, and sharing. These norms express the unique importance of the marriage relationship. They are embodied in well-understood community expectations about appropriate marital behavior that are internalized by individuals entering marriage.”

161. Meyer, A Privacy Right, at 910. See also Kimberly A. Yuracko, Does Marriage Make People Good or Do Good People Marry? 42 SAN DIEGO L. REV. 889, 893–94 (2005).

162. Id. at 909. See also fn. 115: “For lucid accounts of the ways in which government helps shape and enforce social norms through marriage, see Cott, Public Vows; Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006) (hereafter McClain, Place of Families). . . As Professor McClain observes, ‘Viewing families solely as a realm of “private” life, free from governmental intrusion, misses the active role of government in regulating families by defining “family” and the roles, rights, and obligations of family life.’”

163. Id. at 910.

164. Id. Research seems to support this as well; a “recent National Survey of Family Growth found that almost half of those cohabitation unions that do not transition to marriage dissolved within three years. Forty percent of first premarital cohabitations among women transitioned to marriage by three years, 32 percent remained intact, and 27 percent dissolved.” Casey Copen, Kimberley Daniels & William Mosher, First Premarital Cohabitation in the United States: 2006–2010 National Survey of Family Growth, Nat’l Health Statistics Rep. Center for Disease Control 5 (Apr. 4, 2013), quoted in Scott & Scott, From Contract to Status at fn. 73.

165. See 42 C.F.R. § 411.12 (“Charges imposed by an immediate relative or member of the beneficiary’s household”); and 1 MEDICARE AND MEDICAID CLAIMS AND PROCEDUREs § 2:56 (4th ed. 2001) (this defines “immediate relative” as any of the following: “Husband or wife; Natural or adoptive parent, child, or sibling; Stepparent, stepchild, stepbrother, or stepsister; Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; Grandparent or grandchild; Spouse of grandparent or grandchild”). See also 42 C.F.R. § 411.12(b)(1)–(6); 3 ADVISING THE ELDERLY CLIENT § 27:25 (this defines immediate relatives); 42 U.S.C. § 3056 et seq.; and Pub. L. No. 109–365, 20 C.F.R. § 641.841, 51 (“Employee benefits—‘What policies govern nepotism?’”).

166. Meyer, A Privacy Right, at 910.

167. Id.

168. Scott, Marriage, Cohabitation, at 245, referencing Nock, Comparison of Marriages, at 56. See also Brines & Joyner, Ties That Bind, at 333. “These authors describe costs and benefits of the absence of a system of social norms regulating informal unions. Cohabiting couples are freer to experiment and develop relationships that are tailored to their individual needs. However, the partners may have less incentive to jointly invest in the relationship, and they lack guidelines for ‘how partners might conduct themselves once they set up a household.’” Brines & Joyner, Ties That Bind, at 350–51, in Scott, fn. 73.

169. Scott, Marriage, Cohabitation, at 245–246. “The value of family stability is important in other ways. It is well established that secure relationships with parents contribute in critical ways to healthy child development and that family dissolution imposes financial and psychological costs on children.”

170. See Carl Bialik, Same-Sex Divorce Stats Lag, WALL STREET J., May 3, 2013 (hereafter Bialik, Same-Sex Divorce).

171. Id. See also Colleen McNichols Ramais, ’Til Death Do You Part . . . and This Time We Mean It: Denial of Access to Divorce for Same-Sex Couples, 2010 U. ILL. L. REV. 1013 (2010).

172. Id. at 1041–42.

173. See Danielle Johnson, Same-Sex Divorce Jurisdiction: A Critical Analysis of Chambers v. Ormiston and Why Divorce Is an Incident of Marriage That Should Be Uniformly Recognized throughout the States, 50 SANTA CLARA L. REV. 225 (2010). See also Elisabeth Oppenheimer, No Exit: The Problem of Same-Sex Divorce, 90 N.C. L. REV. 73 (2011); Judith M. Stinson, The Right to (Same-Sex) Divorce, 62 CASE W. RES. L. REV. 447 (2011); Mary P. Byrn & Morgan L. Holcomb, Same-Sex Divorce in a DOMA State, 50 FAM. Ct. REV. 214 (2012); Meg Penrose, Unbreakable Vows: Same-Sex Marriage and the Fundamental Right to Divorce, 58 VILL. L. REV. 169 (2013).

174. Susan Sommer, director of Constitutional Litigation for Lambda Legal, a New York–based group litigating on behalf of gay rights, quoted in Bialik, Same-Sex Divorce.

175. See www.callfamilylegal.com/#!same-sex-relationships/c9qr: “The number of gay marriages was recorded for the first time in the 2010 census. In November 2011, the esteemed Williams Institute published a body of research which included rates that same-sex couples were getting married and divorced.” The study found that the percentage of those same-sex couples who end their legal relationship ranges from 0 percent to 1.8 percent annually, or 1.1 percent on average, whereas 2 percent of married different-sex couples divorce annually. They also discovered that couples are more likely to legally formalize their relationship when marriage is an option, as opposed to a marriage-equivalent domestic partnership or civil union registration in states where only those options are allowed. M. V. Lee Badgett & Jody L. Herman, Patterns of Relationship Recognition by Same-Sex Couples in the United States, Williams Institute (November 2011), http://williamsinstitute.law.ucla.edu.

176. See Marc R. Poirier, Name Calling: Identifying Stigma in the “Civil Union/Marriage” Distinction, 41 CONN. L. REV. 1425 (2009).

177. Id. The idea of a “separate but equal” structure has also been analogized unfavorably to the illegal and unconstitutional separation of accommodations for different races. See William N. Eskridge Jr., Equality Practice: Liberal Reflections on the Jurisprudence of Civil Union, 64 ALB. L. REV. 853 (2001) (hereafter Eskridge, Equality Practice).

178. See Misha Isaak, “What’s in a Name?” Civil Unions and the Constitutional Significance of “Marriage,” 10 U. PA. J. CONST. L. 607 (2008) (hereafter Isaak, “What’s in a Name?”). See also Douglas NeJaime, Framing (In)equality for Same-Sex Couples, 60 UCLA L. REV. DISCOURSE 184 (2013).

180. Id. 349–64 (2006).

181. Id. at 358. See also American Psychological Association, Resolution on Sexual Orientation and Marriage, www.apa.org; and American Psychological Association, Resolution on Sexual Orientation, Parents and Children, www.apa.org.

182. Id. citing to R. F. Oswald, C. J. Patterson & K. A. Kuvalanka, National Council on Family Relations, NCFR Fact Sheet: Same-Sex Marriage (2004), www.ncfr.org; and N. Gartel, A. Banks, J. Hamilton, N. Reed, H. Bishop & C. Rodas, The National Lesbian Family Study II: Interviews with Mothers and Toddlers, 69 AM. J. ORTHOPSYCHIATRY 362, 362–69 (1999).

183. See W. Bradford Wilcox & Robin Fretwell Wilson, Bringing Up Baby: Adoption, Marriage, and the Best Interests of the Child, 14 WM. & MARY BILL RTS. J. 883, 897 (2006). “Importantly, these differences persisted even after socioeconomic status was stripped away. Thus, differences attributable to family form add to and compound the wealth and educational advantages also experienced by children in marital households.” Id. fn. 73.

184. Id. Wilcox and Wilson quotes Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal? Biology versus Marriage as a Basis for Paternal Investment, 65 J. MARRIAGE & FAM. 213, 213 (2003) (hereafter Hofferth & Anderson, Are All Dads Equal?). See also Rachel Dunifon & Lori Kowaleksi-Jones, Who’s in the House? Race Difference in Cohabitation, Single Parenthood, and Child Development, 73 CHILD DEV. 1249, 1252 (2002), cited in Wilson, Evaluating Marriage at 868.

185. Wilson, Evaluating Marriage, at 867. See also William Marsiglio, When Stepfathers Claim Stepchildren: A Conceptual Analysis, 66 J. MARRIAGE & FAM. 22, 22, 37 (2004) id. fn. 108.

186. Id. See also Robert Emery, Marriage, Divorce, and Children’s Adjustment (1999), and the studies described in Elizabeth S. Scott, Pluralism, Parental Preference and Child Custody, 80 CAL. L. REV. 615 (1992).

187. Id. See Steven L. Nock, Marriage in Men’s Lives: A Comparison of Marriage and Cohabitation (1998); Nock, Comparison of Marriages, at 53; Waite, Does Marriage Matter? at 483. Children whose parents were never married also see their fathers less frequently after a divorce. See Lynne M. Casper & Suzanne M. Bianchi, Continuity and Change in the American Family 46 (2001) (hereafter Casper & Bianchi, Continuity and Change).

188. Garrison, Marsha, The Decline of Formal Marriage: Inevitable or Reversible? 41 FAM. L. Q. 491 (2007), p. 500 citing Kristen R. Heimdal & Sharon K. Houseknecht, Cohabiting and Married Couples’ Income Organization: Approaches in Sweden and the United States, 65 J. MARRIAGE & FAM. 525, 527 (2003). See also Kathleen Kiernan, European Perspectives on Union Formation, in TIES THAT BIND: PERSPECTIVES ON MARRIAGE AND COHABITATION 84 (Linda Waite et al. eds., 2000) (hereafter Kiernan, European Perspectives) in Garrison, fn. 39–40.

189. Id fn. 21 citing to Frank F. Furstenberg Jr. et al., The Effect of Divorce on Intergenerational Transfers: New Evidence, 32 DEMOGRAPHY 319 (1995); and Nadine F. Marks, Midlife Marital Status Differences in Social Support Relationships with Adult Children and Psychological Well-Being, 16 J. FAM. ISSUES 5 (1995).

190. Id. at 497 citing to Lingxin Hao, Family Structure, Private Transfers, and the Economic Well-Being of Families with Children, 75 SOC. FORCES 269 (1996).

191. Pawelski et al., p. 361 supra note 179.

192. Id.; see also National Association of Social Workers, Gay, Lesbian and Bisexual Issues Policy, www.socialworkers.org.

193. See William N. Eskridge Jr. and Darren R. Spedale, Gay Marriage: For Better or for Worse: What We’ve Learned from the Evidence (Oxford, UK: Oxford University Press, 2006, p. 160). Benefits/incentives that are available to families that include children, regardless of whether parents are married, include government employee health-care benefits, family leave, and Social Security disability and survivor benefits. See generally 42 U.S.C. § 402 (2000) (making Social Security benefits available to surviving spouses); and 29 U.S.C. § 2612(a)(1) (2000) (allowing employees up to twelve weeks a year to care for a child, spouse, or parent suffering from a “serious medical condition”). Single-parent families might also be eligible for direct financial subsidies that are not available to married couples, under programs such as TANF. See 42 U.S.C. §§ 601–19 (2000). Cohabiting couples might also qualify for some family benefits and privileges, for example, civil union or domestic partnership ordinances under which partners are eligible for health insurance, family leave benefits, hospital visitation rights, or guardianship status that would be compatible with maintaining the privileged status of marriage. Such rights could be extended to nonconjugal families as well. All of the above is meant to reinforce the idea that marriage is and deserves to be a special status but not to exclude other families from government benefits to which they should be entitled.

194. Obergefell v. Hodges, No. 14-556, 2015 WL 2473451 (U.S. June 26, 2015) at 15.

CHAPTER 2. UNBUNDLING MARRIAGE

1. DiFonzo, Unbundling Marriage, fn. 25 See also generally J. Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture of Divorce in Twentieth-Century America 145–77 (1997) (hereafter DiFonzo, Beneath the Fault Line), Id.

2. Unbundling, at 44 and see fn. 60. Two recent proposals have even called for marriage partners to have substantial power over choice of law issues. See Brian H. Bix, Choice of Law and Marriage: A Proposal, 36 FAM. L.Q. 255, 255 (2002); F. H. Buckley & Larry E. Ribstein, Calling a Truce in the Marriage Wars, U. ILL. L. REV. 561, 568–71 (2001).

3. Id., Unbundling, at 44–45 See generally Brian H. Bix, Premarital Agreements in the ALI Principles of Family Dissolution, 8 DUKE J. GENDER L. & POL’Y 231 (2001) cited in DiFonzo, Unbundling Marriage, n. 61. See also Pamela Yip, Married? Consider a Postnup, SEATTLE TIMES, Mar. 16, 2003, at F6. “Postnuptial” agreements, which have also recently mushroomed, differ from the older separation and property settlement agreements in that the latter are generally negotiated as a prelude to dissolution. See John De Witt Gregory et al., Understanding Family Law § 4.05, at 103–4 (2d ed. 2001), Id. at 62. Compare with the 1930 Colorado Supreme Court opinion:

denouncing and voiding a couple’s attempt to modify a marriage contractually by providing that, in the event of a separation, the husband pay the wife one hundred dollars per year of married life in settlement of her property and alimony claims:

The antenuptial contract was a wicked device to evade the laws applicable to marriage relations, property rights, and divorces, and is clearly against public policy and decency. . . . The contract is utterly void. It is against public policy. The marriage relation lies at the foundation of our civilization. Marriage promotes public and private morals, and advances the well-being of society and social order. The sacred character of the marriage relation is indissoluble, except as authorized by legislative will and by the solemn judgment of a court. It cannot be annulled by contract, or at the pleasure of the parties.

Popham v. Duncan (In re Duncan’s Estate), 285, 757, 757–58 (Colo. 1930), quoted in DiFonzo, Unbundling Marriage, n. 63.

4. Henry Sumner Maine, Ancient Law 163 (1884) quoted in Unbundling at 46.

5. Unbundling at 45. See, also fn. 64, citing FreeAdvice.com, http://family-law.freeadvice.com (this states that a prenuptial agreement must generally be signed by both the husband and wife; hereafter What Are the Key Elements).

6. Id.

7. DiFonzo, Unbundling Marriage, at 46 and fn. 68, quoting Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 IND. L. J. 453, 466 (1998).

8. DiFonzo, Unbundling Marriage, at 46. See also id. at 32.

9. “From 1990 to 2000, the number of unmarried couples increased seventy-two percent, from 3.2 million to 5.5 million. A census report released in 2003 indicated that, while married couples make up fifty-two percent of all households, their prevalence continues to decline as the households of unmarried domestic partners, both opposite-sex and same-sex, proliferate.” DiFonzo, Unbundling Marriage, fn. 26.

10. See Linda D. Elrod & Milfred D. Dale, Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance, 42 FAM. L.Q. 381, 386 (2008), quoted in John W. Ellis, Yours, Mine, Ours? Why the Texas Legislature Should Simplify Caretaker Consent Capabilities for Minor Children and the Implications of the Addition of Chapter 34 to the Texas Family Code, 42 TEX. TECH L. REV. 987, 1030 (2010).

11. Christopher Marquis, Total of Unmarried Couples Surged in 2000 U.S. Census, N.Y. TIMES, Mar. 13, 2003, at A22. Of the 24.3 million citizens in Texas, approximately 6.7 million, or 27 percent, are under eighteen years of age. U.S. CENSUS BUREAU, 2008 AMERICAN COMMUNITY SURVEY (2008) (http://factfinder.census.gov). Additionally, nearly 50 percent of the Texas population fifteen years and over are married, over 10 percent of individuals in that group are divorced, nearly 3 percent are separated, and approximately 30 percent have never married.

12. See Tavia Simmons & Martin O’Connell, Census 2000 Special Reports: Married-Couple and Unmarried Partner Households; 2000, U.S. CENSUS BUREAU, CENSUS 2000 SPECIAL REPORTS: MARRIED-COUPLE AND UNMARRIED PARTNER HOUSEHOLDS (2003), www.census.gov.

13. Judith Stacey, In the Name of the Family: Rethinking Family Values in the Postmodern Age 6 (1996) (hereafter Stacey, In the Name of the Family); see also Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap (1992), quoted in DiFonzo, Unbundling Marriage, at 31.

14. DiFonzo, Unbundling Marriage, at 31 (quoting Jeffrey Evans Stake & Michael Grossberg, Roundtable: Opportunities for and Limitation of Private Ordering in Family Law, 73 IND. L .J. 535, 554 [1998]; remarks by Michael Grossberg); see also Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 9–30 (1985) (Grossberg discusses a legal climate characterized by disputes over the proper scope of domestic authority, both in public and private realms). DiFonzo, Unbundling Marriage, fn. 3.

15. See generally Stephanie Coontz, Historical Perspectives on Family Diversity, in AMERICAN FAMILIES PAST AND PRESENT: SOCIAL PERSPECTIVES ON TRANSFORMATIONS 65, 65–66 (Susan M. Ross ed., 2006).

16. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2000 47, tbl. 46 (2002) (reporting data from 2000). See also David L. Chambers, For the Best of Friends and for Lovers of All Sorts: A Status Other than Marriage, 76 NOTRE DAME L. REV. 1347, 1347 (2001); and U.S. CENSUS BUREAU, HOUSEHOLDS AND FAMILIES 2000, Census 2000 Brief 2 (2001), www.census.gov (reporting that 51.7 percent of households are “married-couple households”), www.census.gov. In Elizabeth F. Emens, Monogamy’s Law, Monogamy and Polyamorous Existence, at fn. 36.

17. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT, id., at 47, tbl. 46.

18. Id. The census quotes from David L. Weis, Adult Heterosexuality, in 3 INTERNATIONAL ENCYCLOPEDIA OF SEXOLOGY 1498, 1503 (Robert T. Francoeur ed., 1997), http://www2.hu-berlin.de (hereafter Weis, Adult Heterosexuality).

19. Emens. Monogamy’s Law, 288, citing to U.S. CENSUS BUREAU, STATISTICAL ABSTRACT, id., at 47, tbl. 46. The census quotes from Patricia Donovan, The Decline of the Traditional Family, U. BUFFALO REP., Feb. 4, 1999, at 6, www.buffalo.edu (Donovan quotes sociologist Lynn Magdol).

20. DiFonzo, Unbundling Marriage, at 32.

21. James Herbie DiFonzo, who I draw heavily from with permission, uses this term in the context of marital law but in a slightly different way, arguing that allocating these bundles of domestic burdens and benefits may become the primary way for the state to preserve its important “channeling function.” See id.

22. BUSINESS ENCYCLOPEDIA DICTIONARY, www.economist.com (last visited Jan. 19, 2004); see also Scott Worden, Micropayments and the Future of the Web (1998), http://cyber.law.harvard.edu.

23. DiFonzo, Unbundling Marriage, at 49–50, citing Baker v. State of Vermont, 744 A.2d 867–77 (Vt. 1999). The Common Benefits Clause reads, in pertinent part, as follows: “That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community.” VT. CONST. ch. I, art. 7.

24. Id., at 50, quoting Baker at 881 (quoting the brief of the state attorney general).

25. DiFonzo, Unbundling Marriage, at 51, quoting David Orgon Coolidge & William C. Duncan, Reaffirming Marriage: A Presidential Priority, 24 HARV. J. L. & Pub. POL’Y 623, 639 (2001).

26. DiFonzo, Unbundling Marriage, at 51, quoting Skinner, 316 U.S. at 541.

27. Id.

28. See DiFonzo Unbundling Marriage, 51, quoting Baker at 881. See also fn. 85, discussing how he court also noted that the legislative policy already granting same-sex couples equality with their heterosexual counterparts in the areas of adoption, child support, and the regulation of parent-child contact after a relationship ended belied the state’s claim that its laws privileged opposite-sex couples with regard to child rearing, and fn. 93, quoting Lawrence, 539 U.S. 558 (2003) (Scalia, J., dissenting) to the effect that: “the encouragement of procreation” is not a strong argument in support of limiting marriage to heterosexuals, “since the sterile and the elderly are allowed to marry.” And the Massachusetts Supreme Judicial Court: “Our laws of civil marriage do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family. [State law] contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce. People who have never consummated their marriage, and never plan to, may be and stay married.” Goodridge, 798 N.E.2d at 961. DiFonzo also quotes the Court of Appeals for Ontario, holding that the government had failed to show a rational connection between the opposite-sex requirement in marriage and the encouragement of procreation and childrearing. “The ability to ‘naturally’ procreate and the willingness to raise children are not prerequisites of marriage for opposite-sex couples.” Halpern v. Canada (A.G.), [2003] 225 D.L.R.4th 529, 566 (Can.)

29. Baker, 744 A.2d at 198.

30. DiFonzo, Unbundling Marriage, 52–55, quoting Baker, at 883, 884. See VT. STAT. ANN. tit. 14, § 1492 (2002). See id. §§ 401–4. See also id. § 551 (“protection against disinheritance through elective share provisions”); and id. § 903 (granting preference in being appointed as the personal representative of a spouse who dies intestate, DiFonzo, Unbundling Marriage, fn. 103). Loss of consortium is a claim for damages suffered by the spouse or family member of a person who has been injured or killed as a result of the defendant’s negligent, intentional, or otherwise wrongful acts; see www.alllaw.com/. See VT. STAT. ANN. tit. 12, § 5431. See VT. STAT. ANN tit. 21, § 632 (1987). See VT. STAT. ANN tit. 3, § 631 (1995). See VT. STAT. ANN tit. 8, §§ 3811, 4063 (2001). See VT. R. EVID. § 504 (2003). See VT. STAT. ANN. tit. 27, §§ 2, 105–6, 141–42 (1998). See VT. STAT. ANN tit. 18 § 1852 (2002). See VT. STAT. ANN. 15, §§ 751–52. 36. Baker, 744 A.2d at 867.

31. Id.

32. Id.

33. Baker, 744 A.2d at 867.

34. DiFonzo, Unbundling Marriage, at 56. See 2000 VT. ACTS & RESOLVES 91 (codified at VT. STAT. ANN tit. 15, §§ 1201–7 [Supp. 2001]). See VT. STAT. ANN tit. 15, §§ 1201(2), 1201(4), 1204(a) (2002) (defining marriage as “the legally recognized union of one man and one woman”). See DiFonzo, Unbundling Marriage, fn. 126:

The legislature’s intention to equalize the status of a married person with that of member of a civil union was articulated in unmistakable terms. See, for example, [VT. STAT. ANN tit. 15] at § 1204(b): “A party to a civil union shall be included in any definition or use of the terms ‘spouse,’ ‘family,’ ‘immediate family,’ ‘dependent,’ ‘next of kin,’ and other terms that denote the spousal relationship, as those terms are used throughout the law”; id. at § 1204(c): “Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons”; and id. at § 1204(d): “The law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance shall apply to parties to a civil union.”

See VT. STAT. ANN tit. 15,at § 1204(e), quoted in DiFonzo, Unbundling Marriage, at 56. DiFonzo points out that “although the statute describes it as ‘nonexclusive,’ the list is a nearly encyclopedic compendium of the blessings and duties of marriage. In both their scope and their detail, these rights and responsibilities constitute the elements of marriage, and supply the frame of reference for the continuing debate over the rules governing the entrance, exit, and content of marriage. Because of their importance—and because few statutes so clearly detail the elements of marriage—the list merits an extensive summary.”

It includes laws relating to the acquisition, ownership, and transfer of real and personal property (including eligibility to hold property as tenants by the entirety); as well as tort actions dependent upon spousal status, such as wrongful death, emotional distress, loss of consortium, or dram shop [i.e., bar]. Laws dealing with probate, adoption, certain kinds of group insurance, spouse abuse programs, prohibitions against discrimination based on marital status, victim’s compensation rights, worker’s compensation benefits, and provisions for affirmance of relationship are also itemized. Key health law provisions are included, relating to the provision of medical care, hospital visitation and notification, terminal care documents, durable power of attorney for health-care execution and revocation, and the making, revoking and objecting to anatomical gifts by others. Also covered are family leave and public assistance benefits, as well as laws relating to immunity from compelled testimony and the marital communication privilege. The list extends to a surviving spouse’s homestead rights, laws relating to loans to veterans, and the definition of a family farmer and family landowner rights to fish and hunt. Also encompassed are certain tax laws, state pay for military service, application for an absentee ballot, and the legal requirements for assignments of wages. In addition to this sizable compilation, the burdens and benefits at stake include those relating to the partners’ mutual economic support, as well as the corpus of domestic relations legislation on annulment, separation and divorce, child custody and support, and property division and spousal maintenance.

See VT. STAT. ANN tit. 15, § 1204(e); DiFonzo, Unbundling Marriage, at 56–57.

35. Baker, 744 A.2d at 898. The majority did not necessarily disagree either but rather felt that they were being “constitutionally responsible.” The opinion notes that “the dissent’s suggestion that her mandate would avoid the ‘political caldron’” of public debate is—even allowing for the welcome lack of political sophistication of the judiciary—significantly insulated from reality. See HAWAII CONST., art. I, § 23; see also ALASKA CONST., art. I, § 25 (state constitutional amendment reversed trial court decision in favor of same-sex marriage—Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct., Feb. 27, 1998)—by providing that “a marriage may exist only between one man and one woman” and assumes that this is reason enough to at least try out another remedy. Baker, 744 A.2d at 888.

36. See Perez v. Lippold, 198 P.2d 17, 29 (Cal. 1948) (granting writ of mandamus [an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion] compelling a county clerk to issue certificate of registry).

37. See the court’s recent language in Baskin v. Bogan, 766 F.3d 648, 670 (7th Cir.) cert. denied, 135 S. Ct. 316 (2014) and cert. denied sub nom.; and Walker v. Wolf, 135 S. Ct. 316 (2014), regarding denial of same-sex marriage:

Imagine if in the 1960s the states that forbade interracial marriage had said to interracial couples: “you can have domestic partnerships that create the identical rights and obligations of marriage, but you can call them only ‘civil unions’ or ‘domestic partnerships.’ The term ‘marriage’ is reserved for same-race unions.” This would give interracial couples much more than Wisconsin’s domestic partnership statute gives same-sex couples. Yet withholding the term “marriage” would be considered deeply offensive, and, having no justification other than bigotry, would be invalidated as a denial of equal protection.

38. Baker, 744 A.2d at 887.

39. Id. at 248.

40. Watson v. City of Memphis, 373 U.S. 526, 535 (1963), quoted in Baker, 744 A.2d at 902.

41. Id. at 536.

42. Baker, 744 A.2d at 248. See also Andrew Sullivan, Why “Civil Union” Isn’t Marriage, NEW REPUBLIC, May 8, 2000, http://igfculturewatch.com. Sullivan notes,

If civil union gives homosexuals everything marriage grants heterosexuals, why the fuss? First, because such an arrangement once again legally divides Americans with regard to our central social institution. Like the miscegenation laws, civil union essentially creates a two-tiered system, with one marriage model clearly superior to the other. The benefits may be the same, as they were for black couples, but the segregation is just as profound. One of the greatest merits of contemporary civil marriage as an institution is its civic simplicity. Whatever race you are, whatever religion, whatever your politics or class or profession, marriage is marriage is marriage. It affirms a civil equality that emanates outward into the rest of our society. To carve within it a new, segregated partition is to make the same mistake we made with miscegenation. It is to balkanize one of the most important unifying institutions we still have. It is an illiberal impulse in theory and in practice, and liberals should oppose it.

43. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954), supplemented sub nom., Brown v. Bd. of Educ., 349 U.S. 294 (1955).

44. See Letter from Barry R. Bedrick, Associate General Counsel, General Accounting Office, to Henry J. Hyde, Chairman, House of Representatives Committee on the Judiciary 1–2 (Jan. 31, 1997).

45. See Gay & Lesbian Advocates & Defenders, Civil Marriage versus Civil Unions: What’s the Difference? (2013), www.glad.org.

46. See Lawrence, 539 U.S. at 601: “‘Preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

47. See Sullivan, Here Comes the Groom. Sullivan notes that:

marriage is not merely an accumulation of benefits. It is a fundamental mark of citizenship. In its rulings, the Supreme Court has found that the right to marry is vested not merely in the Bill of Rights but in the Declaration of Independence itself. In the Court’s view, expressed by Chief Justice Earl Warren in Loving v. Virginia in 1967, “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” It is one of the most fundamental rights accorded under the Constitution. Hannah Arendt put it best in her evisceration of miscegenation laws in 1959: “The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed.” Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to “life, liberty and the pursuit of happiness” . . . and to this category the right to home and marriage unquestionably belongs.

48. Isaak, “What’s in a Name?” at 612.

49. Isaak, at 614. Quoting Jonathan Rauch, Conventional Wisdom, at 37.

50. Id.

51. Lewis v. Harris, 908 A.2d 196, 226–27 (N.J. 2006).

52. See Tyler S. Whitty, Comment, Eliminating the Exception? Lawrence v. Texas and the Arguments for Extending the Right to Marry to Same-Sex Couples, 93 KY. L. J. 813, 816 (2005) cited to in Isaak fn. 30.

53. Goodridge, 798 N.E.2d at 954–55 (Quoted in Isaak at 614 (emphasis added here)).

54. Isaak, “What’s in a Name?” at 615–16.

55. Id. “See, for example, United States v. Chowdhury, 169 F.3d 402, 405–07 (6th Cir. 1999).” This case upheld conviction for marriage fraud for the purpose of violating immigration laws. Isaak fn. 43.

56. Isaak at 616, quoting David B. Cruz, “Just Don’t Call It Marriage”: The First Amendment and Marriage as an Expressive Resource, 74 S. CAL. L. REV. 925, 940 (2001) (hereafter Cruz, “Just Don’t Call It Marriage”).

57. Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 635 (1980) (hereafter Karst, The Freedom of Intimate Association).

58. Id. at 637.

59. Karst, Freedom of Intimate Association, at 636 (emphasis added).

60. Cruz, “Just Don’t Call It Marriage” fn. 11.a “Congress shall make no law . . . abridging the freedom of speech.” U.S. CONST. AMEND. I.

61. Cruz, “Just Don’t Call It Marriage,” at 928.

62. Isaak, “What’s in a Name?” at 624. See also Scott & Scott, From Contract to Status, at 338 fn. 169. “Larry Lessig has shown that the state, if sensitive to social meaning of particular behaviors, can stimulate desired changes through legal expression. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 964–73 (1996).” Isaak notes anecdotally, “We both were profoundly moved when the marriage commissioner said, ‘By the power vested in me by the province of British Columbia, I now pronounce you wife and wife.’ It was another transformative moment that solidified our foundation. . . . Our marriage is strengthened by legal recognition in Canada”; Barbara J. Rhoads-Weaver & Heather E. Rhoads-Weaver, In the Pursuit of Happiness: One Lesbian Couple’s Thoughts on Marriage, 2 SEATTLE J. for SOC. JUST. 539, 544 (2004) [hereafter Rhoads-Weaver & Rhoads-Weaver, In the Pursuit of Happiness]. See also Johnson, Vermont Civil Unions: “When you go into a ceremony and hear a justice (of the peace) say, ‘By the power vested in me,’ it truly was the most joyous experience I’d ever had” (quoting David Mace, A Year with Civil Unions, TIMES ARGUS, July 1, 2001), quoted in Isaak, “What’s in a Name?”

63. Isaak at 624.

64. See DiFonzo, Unbundling Marriage, at 61, noting that in its Principles, the American Law Institute (ALI) has included a chapter governing claims of domestic partners about their relationships. Its definition includes “two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as couple.” See AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS ch. 6 (2002) (“Domestic Partners”).

65. Isaak at 624 and fn. 92.

66. Id. See Baehr v. Miike, CIV. No. 91-1394, 1996 WL 69924235, 8 (Haw. Cir. Ct. Dec. 3, 1996): (“Children of same-sex couples would be helped if their families received the social status derived from marriage”); and Goodridge, 798 N.E.2d at 956–57: (“Children are also directly or indirectly, but no less auspiciously, the recipients of the special legal and economic protections obtained by civil marriage. . . . Some of these benefits are social, such as the enhanced approval that still attends the status of being a marital child. . . . ”). Isaak, fn. 95–96.

67. For more on the proposition that name does matter, compare the speech of then Senator Barack Obama in an August 2007 debate sponsored by the Human Rights Campaign: “My view is that we should try to disentangle what has historically been the issue of the word marriage, which has religious connotations to some people, from the civil rights that are given to couples, in terms of hospital visitation, in terms of whether or not they can transfer property or any of the other—Social Security benefits and so forth.” Tracy Baim, Obama and the Gays: A Political Marriage. Chicago, IL: Prairie Avenue Productions (2010) at 84. See Jacob Sullum, Gay “Marriage” vs. “Civil Unions”: What’s in a Name? REASON (May 10, 2012, 12:43 p.m.) http://reason.com; with President Obama’s statement (Rick Klein, Obama: “I Think Same-Sex Couples Should Be Able to Get Married,” ABC News (May 9, 2012), http://abcnews.go.com/blogs/politics/2012/05/obama-comes-out-i-think-same-sex-couples-should-be-able-to-get-married/).

Over the course of several years, as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage—at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.

68. Difonzo, at 58. See fn. 137, citing J. Robert Cowan, Note, The New Family Plan: Employee Benefits and the Non-Traditional Spouse, 32 U. LOUISVILLE J. FAM. L. 617 (1994); William C. Duncan, Domestic Partnership Laws in the United States: A Review and Critique, B.Y.U. L. REV. 961, 961, 962 (2001); and Raymond C. O’Brien, Domestic Partnership: Recognition and Responsibility, 32 SAN DIEGO L. REV. 163, 165–66 (1995). “While domestic partnership laws have heretofore provided far fewer than all marriage-type rights, there is no conceptual reason they may not approach near parity with marriage.” See, for example, Christopher Lisotta, California Bill Upgrades Gay Partner Rights (Jan. 28, 2003), www.gay.com. Lisotta shows how this bill is designed to “grant the state’s more than 400,000 same-sex couples nearly all the rights, benefits and obligations available to heterosexual spouses under state law.” Id. fn. 137.

69. See Craig A. Bowman & Blake M. Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 COLUM. L. REV. 1164, 1194–95 (1992); in DiFonzo, Unbundling Marriage, at 58–59. For example: “Domestic partners may be entitled to health insurance plan participation, as well as to illness, disability, and bereavement leave. Additionally, the public registration provisions may facilitate the granting of hospital visitation rights and may supply proof of an officially-sanctioned relationship when needed at other times.” Difonzo, Id., 58–59.

70. DiFonzo, Unbundling Marriage, at 59, noting that “Atlanta’s Domestic Partnership Benefits Ordinance extends health, dental, sick leave, and funeral leave benefits to city employees and their registered domestic partners. San Francisco has passed an ordinance requiring employers contracting with the city government to offer the same benefits to employees’ domestic partners as they offer to their legal spouses. The Hawaii legislature enacted a law regulating ‘reciprocal beneficiaries,’ as part of its reaction to the decision in Baehr v. Lewin. Reciprocal beneficiaries may receive health insurance coverage, possess health-care decision-making authority and hospital visitation privileges, obtain the rights of a spouse in a decedent’s estate, and sue for the wrongful death of their partners.”

71. DiFonzo at 60 and fn. 150, citing to Christensen, If Not Marriage? at 1734: (“The much-heralded advent of local domestic partnership laws . . . is mostly about modest symbolic gestures accompanied by few if any tangible benefits”; and Debbie Zielinski, Domestic Partnership Benefits: Why Not Offer Them to Same-Sex Partners and Unmarried Opposite Sex Partners? 13 J. L. & HEALTH 281, 298 (1999): (“The benefits bestowed upon married couples are far more than those given to individuals living in a domestic partnership.”)

72. Just as an example, “the law limits the amount of certain crop support payments that any one person can receive. For this purpose, a husband and wife are considered to be one person, except to the extent each might have owned property individually before the marriage.” James Perkins, Defense of Marriage: Does It Need Defending? Nova Publishers, 2004 (p. 45). While same-sex partners might want this particular branch of the bundle and might even fight for it when relevant, it is likely that if this and only this consideration was excluded from gay marriage they would not feel that their identity as a unit was less strong or less visible in the same way that they do when the government uses a different term than marriage to describe their bond. Some things are just less important in the scheme of things.

73. DiFonzo, Unbundling Marriage, at 66.

74. Janet Halley, Behind the Law of Marriage (i): From Status/Contract to the Marriage System, 6 UNBOUND: HARV. J. LEGAL LEFT 1, 20 (2010) (hereafter Halley, Behind the Law of Marriage). Quoting Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).

75. Id., citing Mavin at 122–123.

76. Washington, Oregon, and Nevada. Halley, Behind the Law of Marriage at 20.

77. Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Utah, Texas, and the District of Columbia. “The principle of common-law marriage was affirmed by the U.S. Supreme Court in Meister v. Moore, 96 U.S. 76 (1877), which ruled that Michigan had not abolished common-law marriage merely by producing a statute establishing rules for the solemnization of marriages.” https://en.wikipedia.org/wiki/Common-law_marriage_in_the_United_States#cite_note-3.

78. See Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 712 (1996).

79. See id.

80. Kerry Abrams, Marriage Fraud 100 Cal. L. Rev. 1, 4. See fn. 15 citing to UTAH CODE ANN. § 30-1-4.5 (LexisNexis 2007); and Ryan D. Tenney, Tom Green, Commonlaw Marriage, and the Illegality of Putative Polygamy, 17 B.Y.U. J. PUB. L. 141, 148–49 (2002) (hereafter Tenney, Tom Green; Tenney discusses the legislative history of this Utah statute). Interestingly, as more and more states are moving away from common-law marriage recognition, which used to be common, not too long ago Utah made the move to codify common-law marriage. This would enable law enforcement to prosecute people who live a “polygamous lifestyle while identifying themselves as ‘single’ on their welfare applications.”

81. DiFonzo, Unbundlling Marriage at 69. Quoting Stephanie Coontz, The Way We Really Are: Coming to Terms with America’s Changing Families 3 (1997).

82. DiFonzo, id., fn. 184 quoting Goodridge, 798 N.E.2d at 967.

83. DiFonzo, id., at 69.

84. DiFonzo, id., at 70.

85. Id. See also 67–68, discussing how some have already started the process of naming and organizing the “myriad attributes of marital and quasi-marital unions.” See Eskridge, Equality Practice, at 853, quoted in DiFonzo, Unbundling Marriage, at 67, and David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447, 454 (1996), quoted in DiFonzo, Unbundling Marriage, at 68.

86. Id. at 67. See also Barbara Bennett Woodhouse, “It All Depends on What You Mean by Home”: Toward a Communitarian Theory of the “Nontraditional” Family, 1996 UTAH L. REV. 569, 587 (1996) (hereafter Woodhouse, “It All Depends”); and Barbara Stark, Marriage Proposals: From One-Size-Fits-All to Postmodern Marriage Law, 89 CAL. L. REV. 1479, 1482 (2001).

87. DiFonzo, id.

88. See Naomi R. Cahn, The Moral Complexities of Family Law, 50 STAN. L. REV. 225, 228, 238 (1997) (hereafter Cahn, Moral Complexities) cited in DiFonzo, fn. 71.

89. DiFonzo, fn. 71 citing to Maggie Gallagher, Fatherless Son Champions Marriage, N.Y. POST, Sept. 1, 2000, www.allianceformarriage.org. Gallagher objects to the characterization of family breakdown as “family diversity.”

90. Id. at 46–47 quoting Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (1996).

91. See, for example, Dan Quayle & Diane Medved, The American Family: Discovering the Values that Make Us Strong 2 (1996), quoted in DiFonzo, Unbundling Marriage, at 47.

92. Defense of Marriage Act, Pub. L. No. 104–199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 [1996]; 28 U.S.C. § 1738C [1996]). Section 3 of DOMA defined marriage for the purpose of federal law as exclusively heterosexual (the union of one man and one woman) thus barring federal court or agency recognition of same-sex marriage in federal law.

93. See DiFonzo fn. 73, 75: “In general, covenant marriage laws allow a couple to opt out of the generally applicable no-fault divorce law and agree to terms which will make it more difficult for them to later divorce. . . . Covenant marriage statutes were drafted with the specific goal of converting a ‘culture of divorce’ to a ‘culture of marriage.’ Joel A. Nichols, Comment, Louisiana’s Covenant Marriage Law: A First Step toward a More Robust Pluralism in Marriage and Divorce Law? 47 EMORY L .J. 929, 929 (1998); Covenant marriage options are at present available in Arizona, Arkansas, and Louisiana. See ARIZ. REV. STAT. ANN. §§ 25-901 to -906 (West 2000 & Supp. 2002); ARK. CODE ANN. §§ 9-11-801 to -811 (2002 & Supp. 2003); and LA. REV. STAT. ANN. §§ 9:272–9:275.1 (West 2000 & Supp. 2002). The bill died in committee.”

94. DiFonzo, at 48. Citing to LA. REV. STAT. ANN. § 9:272(A) (West 2000).

95. Id. at 62 See also fn. 157 citing James M. Donovan, Baby Steps or One Fell Swoop? The Incremental Extension of Rights Is Not a Defensible Strategy, 38 CAL. W. L. REV. 1, 3 (2001). Donovan criticizes the step-by-step strategy to obtain equality for same-sex partnerships.

96. DiFonzo, Unbundling Marriage, at 63.

97. Coolidge & Duncan, Reaffirming Marriage, at 627, cited in DiFonzo fn. 76.

98. See Stacey, In the Name of the Family, at 127. Stacey recommends challenging the “dyadic limitations of Western marriage and seek[ing] some of the benefits of extended family life through small-group marriages arranged to share resources, nurturance and labor.” Quoted in DiFonzo, Unbundling Marriage, at 65.

99. See Blaine M.A. Robinson, Polygamy, http://www.blainerobinson.com/ (Feb. 17, 2013).

100. Typically conceived of as the Judeo-Christian tradition, that is, Judaism.

101. Scholars and lawyers alike routinely conflate polygamy, polygyny, and polyamory, mistakenly collapsing them into a single relationship category. While they are all forms of nonmonogamy, they have some profound differences that make them quite distinct. Polygamy is the practice of marriage among groups of people larger than two, and its most popular form by far is polygyny, in which one man is married to multiple women. Polygyny’s gender correlate, polyandry, is quite rare, and few societies today or historically have been based on marriages of one wife to multiple husbands. Those that do include Tibet, Nepal, India, parts of West Africa, and, as mentioned above, some North American tribes. Historically and cross-culturally, having polygyny as a legally recognized familial option is more common worldwide than is a pure monogamy regime. In contrast to the more conventional gender-limited versions of polygamy, polyandry, and polygyny, polyamory allows both men and women to engage in concurrent sexual or romantic relationships with multiple people, with the knowledge and consent of everyone involved. Polygamy, polyandry, and polygyny are all heterocentric in that they require relationships to occur between women and men; modern polyamory further differs from these other forms of nonmonogamy in that it allows participants to have same-sex relationships as well.

102. Blaine Robison, Polygamy (Feb. 17, 2013), “Including four Gentile kings: Abimelech (Genesis 20:17–18), Benhadad (1 Kings 20:3–4), Ahasuerus (Esther 1:9), and Belshazzar (Daniel 5:2). At least half the men had more than two wives. The earliest recorded plural marriage was Lamech (two wives, Genesis 4:19), six generations after Adam. Even though Lamech is the only polygamist identified before the global flood, there is no reason to believe that he was alone in that status. The post-flood patriarchs continued the plural marriage tradition: Terah (Genesis 11:26; 20:12), Nahor (Genesis 22:20–24), and Abraham (Genesis 16:1–3; 25:1–6). While Isaac was monogamous, his two famous sons were polygamous. Esau had five wives (Genesis 26:34; 28:9; 36:2–3), and Jacob had four (Genesis 29:23–28; 30:4, 9). Eliphaz, son of Esau, had two wives (Genesis 36:11–12). The twelve sons of Jacob and their descendants no doubt continued to be polygamous considering the number of men of fighting age and the number of firstborn counted after the Exodus (Numbers 1:2; 3:40). Other notable men during the Israelite confederacy identified with plural mates included Simeon (Genesis 46:10; Exodus 6:15), Manasseh (1 Chronicles 7:14), Moses (Exodus 2:21; 18:1–6; Numbers 12:1), Caleb (1 Chronicles 2:18–19, 46, 48), Gideon (Judges 8:30), Gilead (Judges 11:1–2), Elkanah (1 Samuel 1:2), Jerahmeel (1 Chronicles 2:26), Ashhur (1 Chronicles 4:5), Ezra (1 Chronicles 4:17–18), Mered (1 Chronicles 4:17–19), Machir (1 Chronicles 7:15–16), and Shaharaim (1 Chronicles 8:8). The tribe of Issachar was particularly noted for its practice of polygamy (1 Chronicles 7:4). Other men during this time may be considered polygamous by virtue of the number of sons listed: Jair (Judges 10:4), Abdon (Judges 12:14), Ibzan (Judges 12:9), and Shimei (1 Chronicles 4:27). During the Israelite monarchy, the kings, their sons, and other prominent men took multiple wives. Named individuals include King Saul (1 Samuel 14:50; 2 Samuel 3:7), King David (1 Samuel 25:42–44; 2 Samuel 3:13–14; 5:13; 6:20–23; 12:8), King Solomon (1 Kings 11:3), King Rehoboam (2 Chronicles 11:18–21), the sons of Rehoboam (2 Chronicles 11:23), King Ahab (1 Kings 20:3), King Jehoiachin (2 Kings 24:15), King Abijah (2 Chronicles 13:21), King Jehoram (2 Chronicles 21:14), King Joash (2 Chronicles 24:2–3), and King Zedekiah (Jeremiah 38:23). Other men during this time may be considered polygamous by virtue of the number of sons listed: Heman (1 Chronicles 25:4) and Ziba (2 Samuel 9:10).” Listed in Blaine Robinson, Polygamy (Feb. 17, 2013), www.blainerobison.com.

103. Polygamy, NEW WORLD ENCYCLOPEDIA, www.newworldencyclopedia.org.

104. See Robison, id. “Perhaps the first known Christian leaders to advocate plural marriage were Basilides and Carpocrates, early second century religious teachers in Alexandria, Egypt (Irenaeus, AGAINST HERESIES, BOOK I, 28:2). They were condemned as heretics by the church, more for their theology than for their marriage beliefs. Even as late as the Roman councils of 1052 and 1063, the suspension from communion of laymen who had a wife and a concubine at the same time implies that mere concubinage was tolerated. It was also recognized by many early civil codes (‘Concubinage,’ ENCYCLOPEDIA BRITANNICA, 1911). At the Council of Trent in 1563, however, the Catholic Church opposed plural marriage in the strongest terms. In Canon II of the Doctrine on the Sacrament of Matrimony, the Church declared, ‘If any one saith, that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law; let him be anathema.’ In the Decree on the Reformation of Marriage, the Church banned ‘concubinage’ in all their lands and called upon the civil authority to enforce this ruling by the most severe punishments to those who did not put away their concubines.” Still, even though the church frowned on the practice, scholars point out that it was occasionally sanctioned by religious leaders, especially in light of necessity arguments. Thus, in the eighth century, Pope Gregory II permitted some men to have more than one wife, and a fifteenth-century pope permitted a Spanish king to marry a second wife. See Irwin Altman & Joseph Ginat, Polygamous Families in Contemporary Society 41 (1996) (hereafter Altman & Ginat, Polygamous Families). See also Peggy Fletcher Stack, Globally, Polygamy Is Commonplace, SALT LAKE TRIBUNE, Sept. 20, 1998, www.4thefamily.us.

105. A few first-generation Protestant reformers experimented with polygamy, and a few later Protestant writers continued to speculate about its virtues. See John Cairncross, After Polygamy Was Made a Sin 7 (1974). Cairncross notes, “If Luther rejected pleas for the re-introduction of polygamy, this is not because he thought such a move would be morally wrong but because he was convinced that it was not all expedient, since it would be bound to discourage potential converts to the new faith. In fact, Luther was so opposed to divorce that he wrote, ‘Indeed, I detest divorce so much, that I prefer bigamy rather than divorce, but whether it may be permitted, I do not dare to determine by myself.’” Robert Kilbride, Philip L. Kilbride & Douglas R. Page, Plural Marriage for Our Times: A Reinvented Option? 21 (Kindle ed. 2012) (1994) (hereafter Kilbride et al., Plural Marriage). These authors quote Leon Miller & John Milton, Among the Polygamophiles 17 (1974). “In 1539, Philip of Hess, with the written consent of Martin Luther and other Lutheran theologians and priests, approved a bigamist marriage that was consecrated by a wedding ceremony performed on March 4, 1540, by Philip’s court preacher. His first wife had given her written permission for the ceremony.” Id. From this and from other quotations (he apparently also told Philip that he advised against plural marriage, especially for Christians, unless there was the highest need. It is fair to say that Luther did oppose plural marriage, unless it was really needed. Robison writes that “Other Christian advocates of polygamy arose in the seventeenth and eighteenth centuries, most notably John Milton (1608–1674), the famous author of Paradise Lost, Martin Madan (1726–1790), an itinerant English preacher in the Calvinist Methodist movement, and author of Thelyphthora, or A Treatise on Female Ruin, and Wesley Hall (1711–1776), brother-in-law to John Wesley and dedicated evangelist. Hall had the distinction of actually practicing polygamy, and yet many churches and Christian evangelicals supported him throughout his ministry.” Robison, id. See also Don Milton, John and Charles Wesley’s Sister Married a Polygamist, CHRISTIAN MARRIAGE, Sept. 24, 2006, www.christianmarriage.com. Many, however, consider Hall a heretic and point out that he did not become a polygamist until after he became a Deist. See Christopher Howse, John Wesley’s Polygamous Brother-in-Law, TELEGRAPH, May 31, 2008, www.telegraph.co.uk.

106. See Bailey & Kaufman, Polygamy in the Monogamous World, at 136–37. Bailey and Kaufman cite The Bishop of Natal on Heathen Polygamy, 24 ECCLESIASTIC AND THEOLOGIAN 217 (1862).

107. See Richard N. Ostling & Joan K. Ostling, Mormon America: The Power and the Promise 74 (1999). See also Robin Gill, Churchgoing and Christian Ethic 249 (1999). Gill notes that, according to the 1988 Lambeth Conference, “It has long been recognized in the Anglican Communion that polygamy in parts of Africa, and traditional marriage, do genuinely have features of both faithfulness and righteousness.”

108. Kilbride et al., Plural Marriage, ch.12.

109. www.polygamystop.org/history.html. Nigeria alone has an estimated forty million.

110. Id.

111. Paul Vallely, The Big Question, available at http://www.independent.co/uk/news/world/africa/the-big-question-whats-the-history-of-polygamy-and-how-serious-a-problem-is-it-in-africa-1858858.html.

112. See, for instance, Bennion, Polygamy in Primetime, at 248.

113. Jessica Bennett, Only You. And You. And You, NEWSWEEK, July 28, 2009, www.thedailybeast.com (hereafter Bennett, Only You). In truth, there could be as many as two hundred thousand polygamists; numbers are hard to come by when the practice is illegal. See David J. Rusin, Polygamy, Too, NATL. REV., Apr. 16, 2012. Numbers are also hard to get for polyamorists; as Elizabeth Brake notes in Recognizing Care: The Case for Friendship and Polyamory, SYRACUSE LAW AND CIVIL ENGAGEMENT FORUM (2014), http://slace.syr.edu (hereafter Brake, Recognizing Care), “In Polyamory in the Twenty-First Century, Deborah Anapol refers to data collected by Loving More and, extrapolating from that data, estimates that one out of every 500 adults in the United States is polyamorous (Anapol, 2010, p. 44). She says that others have speculated that a number in the range of 3.5% of the adult population prefer polyamorous relationships, which would put the figure at about 10 million people.” British Columbia Supreme Court, Reference re: Section 293, at 439–40. “Another recent literature survey cites even higher numbers.” Elizabeth Brake, Recognizing Care.

114. Campaign against Polygamy and Women Oppression International, History of Polygamy, POLYGAMYSTOP (2005), www.polygamystop.org.

115. J. Patrick Gray, Ethnographic Atlas Codebook, 10.1 WORLD CULTURES 86–136 (1998). That same year, the University of Wisconsin surveyed more than a thousand societies and found that, of these, just 186 were monogamous. Vallely, id.

116. Walter Scheidel, Monogamy and Polygyny in Greece, Rome, and World History, in ROME & WORLD HIST. (2008), p. 3. “In a more recent study of 348 better-known societies, 20 percent (n = 71) are defined as monogamous, whereas another 20 percent displayed limited polygyny and fully 60 percent more frequent polygyny.” Id.

117. Paul Vallely, The Big Question: What’s the History of Polygamy and How Serious a Problem Is It in Africa? INDEP., Jan. 6, 2010, www.independent.co.uk.

118. John Witte Jr., The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered 58 (2009) (hereafter Witte, Sins of the Fathers), citing Paul Meyer, Der romische Konkubinat nach den Rechtsquellen und den Inschriften (1895).

119. JUSTINIAN CODE § 5.26.1 (quoting Constantine in 326), quoted in Witte, Sins of the Fathers, at 58–59. See also Judith Evan Grubbs, Law and Family in Late Antiquity: The Emperor Constantine’s Marriage Legislation 294–305 (1995).

120. Scheidel at 6 discussing JUSTINIAN CODE § 7.15.3.2. Justinian’s legislation on concubinage, raising it to almost virtual parity with marriage, as well as his repeated insistence that concubinage must be permanent and that men must not have more than one concubine at a time, clearly accords with the views of Christian authorities. See also James A. Brundage, Law, Sex, and Christian Society in Medieval Europe 117–18 (2009).

121. Scheidel, Monogamy and Polygamy in Greece, at 6. Brundage, Law, Sex, id. at 9. See also Scheidel at 7: “In the very long run, the trajectory of historical change reaches from habitual resource polygyny at low levels of overall development to formal monogamy coupled with various forms of concubinage in early agrarian states and on to socially imposed universal monogamy in parts of the first-millennium BCE Mediterranean that co-existed with de facto polygyny with slave women, a practice that subsequently declined together with the institution of chattel slavery and evolved into church-backed monogamy accompanied by more casual relations with servants or other subordinates that were gradually curtailed by modernization.”

122. Scheidel, id.

123. Natalie Angier, Mating for Life? It’s Not for the Birds of the Bees, N.Y. TIMES, Aug. 1, 1990, www.nytimes.com. “This is an extremely hot topic,” said Dr. Paul W. Sherman, a biologist at Cornell University in Ithaca, N.Y. “You can hardly pick up a current issue of an ornithology journal without seeing a report of another supposedly monogamous species that isn’t. It’s causing a revolution in bird biology.” David P. Barash & Judith Eve Lipton, The Myth of Monogamy: Fidelity and Infidelity in Animals and People (2002) (hereafter Barash & Lipton, Myth of Monogamy).

124. “Scientists and observers of the animal kingdom identify three types of monogamy. The first is sexual monogamy. This is the practice of having sex with only one mate at a time. The second is social monogamy. Animals form pairs to mate and raise offspring but might still ‘wander’ on the side. And the last is genetic monogamy, where DNA tests confirm that a female’s offspring were sired by only one father. Even among those animals that do practice monogamy and mate for life, few and far between are those animals that practice total genetic monogamy or sexual monogamy.” See Barash & Lipton, Myth of Monogamy, discussed in John Henshaw, Why Polygamy Is Illegal When Monogamy Is Not Part of Natural Law, www.thefreeresource.com.

125. Barash & Lipton, Myth of Monogamy, at 32 in Kilbride, at 54.

126. Kilbride citing Al Carrol, Peopling North America, in NATIVE AMERICA: FROM PREHISTORY TO FIRST CONTACT 5 (Rodney P. Carlisle & J. Geoffrey Golson eds., 2007); and Jack D. Forbes, What Is Marriage? A Native American View, NEWS FROM INDIAN COUNTRY, May 3, 2004, www.westgatehouse.com.

127. Kilbride et al., Plural Marriage, at 88.

128. See Joseph G. Jorgensen, Western Indians: Comparative Environments, Languages, and Cultures of 172 Western American Indian Tribes (1980); see also Monique Borgerhoff Mulder, Charles L. Nunn, and Mary C. Towner, Cultural Macroevolution and the Transmission of Traits, 15.2 EVOLUTIONARY ANTHROPOLOGY: ISSUES, NEWS, AND REVIEWS 52, 61 (2006).

129. See Sarah Carter, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915 (2008), in Bailey & Kaufman, POLYGAMY IN THE MONOGAMOUS WORLD, at 72.

130. Id.

131. The court in Baskin v. Bogan said something similar when it noted as follows:

The state elaborates its argument from the wonders of tradition by asserting, again in its opening brief, that “thousands of years of collective experience [have] established traditional marriage, between one man and one woman, as optimal for the family, society, and civilization.” No evidence in support of the claim of optimality is offered, and there is no acknowledgment that a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah. (Indeed it’s been said that “polygyny, whereby a man can have multiple wives, is the marriage form found in more places and at more times than any other.” Stephanie Coontz, Marriage: A History; How Love Conquered Marriage 10 [2006].)

Baskin 766 F.3d at 667; Walker v. Wolf, 135 S.

132. Some of the religious statements about the goods of marriage quoted above, such as the “Sermon in Praise of a Wife,” were even made in contemplation of there possibly being more than one.

133. Perhaps more defining moments (and the possibility of having or choosing not to have them) will lead to even more self-actualization.

134. See Erick Eckholm, Push Expands for Legalizing Same-Sex Marriage, N.Y. TIMES, Nov. 12, 2012, www.nytimes.com.

CHAPTER 3. THE REALITIES OF MONOGAMY AND THE PUSH FOR PLURAL MARRIAGE

1. Emens in Monogamy’s Law, fn. 21 provides a good case summary: “See, for example, Davis v. Beason, 133 U.S. 333 (1890) (rejecting a First Amendment habeas challenge to convictions for polygamists’ attempt to register to vote and oath that they were not polygamists); Murphy v. Ramsey, 114 U.S. 15 (1885) (rejecting procedural challenges to the application of the Edmonds Act, which denied polygamists the right to vote, even if they were only engaged in plural cohabitation); and Reynolds v. United States, 98 U.S. 145 (1878) (affirming the criminal conviction of a Mormon for practicing polygamy and rejected the argument that Congress’s prohibition of polygamy violated the defendant’s rights under the Free Exercise Clause). See also Potter v. Murray City, 760 F.2d 1065, 1069–70 (10th Cir. 1985) (rejecting a free exercise and privacy rights challenge to a police officer’s termination for polygamy, on the grounds that Reynolds is still good law and that ‘protect[ing] the monogamous marriage relationship’ is a compelling state interest). cf. Romer v. Evans, 517 U.S. 620, 634 (1996): (‘To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.’ (internal citations omitted). Id. at 649–50 (Scalia, J., dissenting): (noting that ‘To the extent, if any, that [Davis] permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, it has, of course, been overruled by later cases. But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law’ (internal citation omitted). But see e.g. Wisconsin v. Yoder, 406 U.S. 205, 247 (1972) (Douglas, J., dissenting) (predicting that under the reasoning of the majority opinion ‘in time Reynolds will be overturned’); Keith E. Sealing, Polygamists Out of the Closet: Statutory and State Constitutional Prohibitions against Polygamy Are Unconstitutional under the Free Exercise Clause, 17 GA. ST. U. L. REV. 691, 737–57 (2001) [hereafter Sealing, Polygamists Out of the Closet] arguing that laws forbidding polygamous marriage are unconstitutional under the Free Exercise Clause because marriage is a fundamental right and therefore religious polygamy is a hybrid situation requiring strict scrutiny under Dep’t of Human Resources v. Smith, 494 U.S. 872, 881 (1990), or because current antipolygamy statutes and state constitutional provisions were enacted out of antipathy to a particular religion and substantially burden a central tenet of that religion while furthering no compelling governmental interest, under Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 [1993]).” See Emens, Monogamy’s Law, at 376. In 2005, the court denied cert. to another Fundamentalist Latter-Day Saints (FLDS) polygamy case. See Holm v. Utah, 127 S. Ct. 1371 (2007).

2. “The elision of polygamy and polygyny is ‘exemplified, with some acknowledgment of the confusion, by the Oxford English Dictionary definition of “polygamy”: “Marriage with several, or more than one, at once; plurality of spouses; the practice or custom according to which one man has several wives (distinctively called polygyny), or one woman several husbands (polyandry), at the same time. Most commonly used of the former.”’” OXFORD ENGLISH DICTIONARY 1382 (1993), quoted in Emens, Monogamy’s Law, at 303.

3. Emens, Monogamy’s Law, at 282.

4. As noted above, under Utah laws, for instance, polyamorous relationships qualify as cohabitation and thus are treated as polygamy or bigamy.

5. See, for example, Lana Tibbetts, Commitment in Monogamous and Polyamorous Relationships 1 (2001), www.picucci.net. Cited in Emens, fn. 27.

6. See Mark Stricherz, Polyamorist Group Wants Legal Recognition for Multiple Marriages, COLO. OBSERVER, Mar. 21, 2013, http://thecoloradoobserver.com. See also the results of the Loving More study What Do Polys Want? An Overview of the 2012 Loving More Survey, www.lovemore.com.

7. Emens, at 283–284, where she also makes the argument that “a key reason for the opposition to polyamory is, somewhat paradoxically, the pervasive or potential failure of monogamy.”

This argument draws lessons from the theory and politics of homosexuality, which demonstrate that the “universalizing” possibilities of a particular minority practice may drive allies away, rather than creating the conditions for solidarity through common ground. Many people engage in nonmonogamous behavior; many more have nonmonogamous fantasy lives. . . . Paradoxically, this mainstream impulse to nonmonogamy helps to explain the position of multiparty relationships beyond the pale of the marriage debates. Rather than prompting outsiders to identify with polyamorists, the potential of nearly everyone to imagine him- or herself engaging in nonmonogamous behavior leads outsiders to steel themselves against polyamory and to eschew the idea of legitimizing such relationships through law. This I call the paradox of prevalence.

Emens, Monogamy’s Law, at 283–284.

8. Id.

9. Id. fn. 49: “See, for example, Richard A. Posner, Sex and Reason 302 (1992) [noting American disapproval of promiscuity]; and Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 BERKELEY WOMEN’S L. J. 122, 160–61 (1993) (Cepko discusses the role of disapproval of sexual promiscuity in successful petitions for forced sterilization of women). At least ten states and the District of Columbia penalize fornication. See D.C. CODE § 22-1602 (2001); IDAHO CODE ANN. § 18-6603 (2003); 720 ILL. COMP. STAT. 5/11-8 (2002); MASS. GEN. LAWS ANN. ch. 272, § 18 (West 2000); MINN. STAT. ANN. § 609.34 (West 2003); MISS. CODE ANN. § 97-29-1 (2003); N.C. GEN. STAT. § 14-184 (2003); N.D. CENT. CODE § 12.1-20-08 (2003); S.C. CODE ANN. § 16-15-60 (2002); UTAH CODE ANN. § 76-7-104 (2002); and VA. CODE ANN. § 18.2-344 (2003). These laws are occasionally enforced in certain contexts. See, for example, Juhi Mehta, Note, Prosecuting Teenage Parents under Fornication Statutes: A Constitutionally Suspect Legal Solution to the Problem of Teen Pregnancy, 5 CARDOZO WOMEN’S L. J. 121 (1998). Some believe that the presence of these laws on the books sends an important message of disapproval. See, for example, Traci Shallbetter Stratton, Note, No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication, 73 WASH. L. REV. 767, 797 (1998).”

10. Id. at fn. 50: “At least twenty-three states and the District of Columbia still have laws criminalizing adultery in some form. See ALA. CODE § 13A-13-2 (2003); ARIZ. REV. STAT. ANN. § 13-1408 (2003); COLO. REV. STAT. § 18-6-501 (2003); D.C. CODE § 22-201 (2001); FLA. STAT. ANN. § 798.01 (West 2000); GA. CODE ANN. § 16-6-19 (1990); IDAHO CODE ANN. § 18-6601 (2003); 720 ILL. COMP. STAT. ANN. 5/11-7(a) (West 2002); KAN. STAT. ANN. § 21-3507(1) (2002); MD. CODE ANN., crim. § 10-501 (2002); MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2000); MICH. COMP. LAWS ANN. § 750.30 (West 2003); MINN. STAT. ANN. § 609.36 (West 2004); MISS. CODE ANN. § 97-29-1 (1999); N.H. REV. STAT. ANN. § 645:3 (1996); N.Y. PENAL LAW § 2.55.17 (McKinney 2004); N.C. GEN. STAT. § 14-184 (2003); N.D. CENT. CODE § 12.1-20-09 (1997); OKLA. STAT. ANN. tit. 21, § 871 (West 2002); R.I. GEN. LAWS § 11-6-2 (2002); S.C. CODE ANN. § 16-15-60 (2002); UTAH CODE ANN. § 76-7-103(1) (West 1999); VA. CODE ANN. §§ 18.2–18.365 (1996); and W.VA. CODE ANN. § 61-8-3 (West 2000 ).” Emens also notes that prosecutions for adultery are rare except in specialized contexts such as the military. Id.

11. Id. at fn. 51 “Forty-nine states and the District of Columbia have statutes criminalizing polygamy. See ALA. CODE § 13A-13-1 (1994); ALASKA STAT. § 11.51.140 (1983); ARIZ. REV. STAT. ANN. § 13-3606 (2001); ARK. CODE ANN. § 5-26-201 (2000); CAL. PENAL CODE § 281 (West 1999); COLO. REV. STAT. ANN. § 18-6-201 (West 2003); CONN. GEN. STAT. ANN. § 53a-190 (West 2001); DEL. CODE ANN. tit. 11, § 1001 (2001); D.C. CODE § 22-501 (2001); FLA. STAT. ANN. § 826.01 (West 2000); GA. CODE ANN. § 16-6-20 (1990); IDAHO CODE ANN. § 18-1101 (1997); 720 ILL. COMP. STAT. ANN. 5/11-12 (West 2002); IND. CODE ANN. § 35-46-1-2 (West 1998); IOWA CODE ANN. § 726.1 (West 2003); KAN. STAT. ANN. § 21-3601 (1995); KY. REV. STAT. ANN. § 530.010 (West 1999); LA. REV. STAT. ANN. § 14:76 (1986); ME. REV. STAT. ANN. tit. 17-A, § 551 (1983); MD. CODE ANN., crim. § 10-502 (West 2002); MASS. GEN. LAWS ANN. ch. 207, § 4 (West 1998); MICH. COMP. LAWS ANN. § 551.5 (West 1998); MINN. STAT. ANN. § 609.355 (West 2003); MISS. CODE ANN. § 97-29-13 (1999); MO. ANN. STAT. § 568.010 (West 2000); MONT. CODE ANN. § 45-5-611 (2003); NEB. REV. STAT. § 28-701 (1995); NEV. REV. STAT. ANN. § 201.160 (West 2002); N.H. REV. STAT. ANN. § 639:1 (1996); N.J. STAT. ANN. § 2C:24-1 (West 1995); N.M. STAT. ANN. § 30-10-1 (West 1978); N.Y. PENAL LAW § 255.15 (McKinney 2000); N.C. GEN. STAT. § 14-183 (2000); N.D. CENT. CODE § 12.1-20-13 (1997); OHIO REV. CODE ANN. § 2919.01 (West 1997); OKLA. STAT. ANN. tit. 21, § 881 (West 2002); OR. REV. STAT. § 163.515 (2001); 18 PA. CONS. STAT. ANN. § 4301 (West 1983); R.I. GEN. LAWS § 11-6-1 (2002); S.C. CODE ANN. § 16-15-10 (2003); S.D. CODIFIED LAWS § 22-22-15 (2003); TENN. CODE ANN. § 39-15-301 (2003); TEX. PENAL CODE ANN. § 25.01 (West 2003); UTAH CODE ANN. § 76-7-101 (West 1999); VA. CODE ANN. § 20-38.1 (2001); VT. STAT. ANN. tit. 13, § 206 (1998); WASH. REV. CODE ANN. § 9A.64.010 (West 2000); W.VA. CODE ANN. § 61-8-1 (West 2000); WIS. STAT. ANN. § 944.05 (West 1996); and WYO. STAT. ANN. § 6-4-401 (West 2003).”

12. Id. fn. 60. “See, for example, Arthur B. Shostak, Singlehood, in HANDBOOK OF MARRIAGE AND THE FAMILY 355, 365–66 (Marvin B. Sussman & Suzanne K. Steinmetz eds., 1987); and Shari Motro, Single and Paying for It, N.Y. TIMES, Jan. 25, 2004, at WK15.”

13. Id. at 291.

14. Id. at 291 quoting Potter, 760 F.2d at 1065, 1070 (upholding the termination of a police officer for bigamy).

15. Obergefell v. Hodges, at 13.

16. Id. For references to this idea in popular high culture, see Anne Bradstreet, To My Dear and Loving Husband, in THE COMPLETE WORKS OF ANNE BRADSTREET 180 (Joseph R. McElrath Jr. & Allan P. Robb eds., 1981) (1678). Id. fn. 60.

17. Emens at 292.

18. See David L. Cohn, Are Americans Polygamous? A. MONTHLY, Aug. 1947, at 30, 32.

19. Voltaire, “La Bégueule” (Contes, 1772). See also Msgr. Charles Pope, “When the Best Is the Enemy of the Good,” COMMUNITY IN MISSION. 08 June 2012. Web. 15 July 2016. http://blog.adw.org/2012/06/when-the-best-is-the-enemy-of-the-good/.

20. Halley, Behind the Law of Marriage, at 13. See Leslie Joan Harris, June Carbone & Lee E. Teitelbaum, Family Law 255–258 (4th ed. 2010). In Halley, fn. 38.

21. This has happened in Louisiana. See In re Succession of Jones, 08-1088 (La. App. 3 Cir. Mar. 4, 2009); 6 So. 3d 331, quoted in Halley, Behind the Law of Marriage, at 58.

22. Petition for Rehearing & Motion for Stay, In re Marriage Cases, S14799, www.lc.org and at https://www.susans.org/wiki/Polyamory.

23. The idea is not so farfetched. As Martha Ertman has pointed out, one municipality in London has already considered extending domestic partnerships to more than two at a time. See Jan Battles, Cork Opens Door to Gay Couples, SUNDAY TIMES, Feb. 6, 2000; Battles describes how Cork considered a domestic partnership bill that would recognize affiliations with more than two partners, in Martha M. Ertman, The Ali Principles’ Approach to Domestic Partnership, 8 Duke J. Gender L. & Pol’y 107, 117 (2001) Canada considered something very similar in the “Beyond Conjugality” Report. See L. COMM’N OF CAN., BEYOND CONJUGALITY: RECOGNIZING AND SUPPORTING CLOSE PERSONAL ADULT RELATIONSHIPS (2001), http://ssrn.com.

24. Emens, 294–295 quoting Morris, Naked Ape, at 64 in Emens, fn. 81.

25. Ridley, Red Queen, at 199 and Morris, Naked Ape in Emens, fn. 84.

26. Id. at 214 in Emens, fn. 85.

27. Id. at 213–14, in Emens, fn. 86.

28. Wright, Moral Animal, at 63, in Emens, fn. 87.

29. See Katharine K. Baker, Biology for Feminists, 75 CHI.-KENT L. REV. 805, 807–13 (2000). Baker reviews the scientific accounts that men are inclined to spread their seed as far and wide as possible in order to ensure that they reproduce. In Emens, fn. 76.

30. See Jessica Martin, Can U.S. Law Handle Polygamy? STATES NEWS SERV., June 21, 2011, www.highbeam.com. Martin quotes Adrienne Davis, the William M. Van Cleve Professor of Law at Washington University in St. Louis.

31. Mary Ann Glendon, The New Marriage and the New Property, in MARRIAGE AND COHABITATION IN CONTEMPORARY SOCIETIES: AREAS OF LEGAL, SOCIAL AND ETHICAL CHANGE 59, 63 (John M. Eekelaar & Sanford N. Fetz eds., 1980).

32. U.S. CENSUS BUREAU, SUMMARY OF STATISTICS ON MARRIAGE, DIVORCE AND REMARRIAGE AFTER DIVORCE (2007), www.remarriage.com. Additional interesting numbers include the fact that 42 percent of adults have a step relationship—either a stepparent, a step or half sibling, or a stepchild. This translates to 95.5 million adults. Thirteen percent of adults are stepparents (29–30 million), 15 percent of men are stepdads (16.5 million), and 12 percent of women are stepmoms (14 million). Ten percent of women in the United States have had three or more marriages, divorces, or cohabiting partners . . . by age thirty-five (the next highest industrialized nation is Sweden at 4.5 percent). See K. Parker, A Portrait of Stepfamilies, PEW RESEARCH CTR. (2011), http://pewsocialtrends.org.

33. See N.Y. TIMES, Aug. 31, 2009, www.nytimes.com. Angier quotes research by Monique Borgerhoff Mulder of UC-Davis that serial monogamy is sometimes a woman’s choice—and not only in foreign places (like amongst the Pimbwe people of Tanzania) but even in America.

34. Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 COLUM. L. REV. 1955, 2046 (2010) (hereafter Davis, Regulating Polygamy), at 2028. When the Family Research Council’s Marriage & Religion Research Institute (MARRI) released its second annual Index of Family Belonging and Rejection in 2011, they found that “states with higher scores on the Index have lower child poverty rates, and states that score low have high child poverty rate. . . . A father is motivated to work harder to support a child when he is the biological parent of the child and lives with the child and mother.” Jennifer LeClaire, Survey Pinpoints Root of Broken Families, Childhood Poverty, CHARISMA NEWS, Nov. 18, 2011, www.charismanews.com.

35. Id. See also fn. 245 citing Nancy Rosenblum, Democratic Sex: Reynolds v. U.S., Sexual Relations, and Community, in SEX, PREFERENCE, AND FAMILY: ESSAYS ON LAW AND NATURE 63, 78 (David M. Estlund & Martha C. Nussbaum eds., 1997), cited in Davis, 133 U.S. at n.245.

36. R. Scott Lloyd, BYU Professor Speaks on LDS Polygamy, DESERET NEWS, May 24, 2009, www.deseretnews.com.

37. Davis, Regulating Polygamy at 2029.

38. Emens, fn. 100: “See, for example, Potter v. Murray City, 585 F. Supp. 1142 n.7 (D. Utah 1984). (noting that plaintiff, fired from his job as a police officer for practicing polygamy, had sought the admission during discovery that ‘the high rate of divorce in the United States has often turned today’s American familial relationships into a form of serial polygamy.’) aff’d, 760 F.2d at 1065 (affirming district court’s rejection of the plaintiff’s free exercise and privacy-based challenge to his termination); David G. Maillu, The Whiteman’s Polygamy, in OUR KIND OF POLYGAMY 29 (1988) [hereafter Maillu, Whiteman’s Polygamy].”

39. Emens, Monogomy’s Law, at 298.

40. Id. at 298.

41. See Audrey Chapman, Man Sharing (1986).

42. Davis, at 2029 and fn. 247: “Compare Zablocki, 434 U.S. at 375–77 (this case held as unconstitutional statute forbidding individuals with child custody obligations from marrying without court approval); and Skinner, 316 U.S. at 541 (this case found the constitutional right to procreate), with State v. Oakley, 629 N.W.2d 200, 201 (Wis. 2001) (this case held that where the father is not supporting existing children, the state may bar him from having more children as condition of his probation). Kenneth Karst, in his classic article The Freedom of Intimate Association, at 667, found there is a constitutional right to remarry implied in Zablocki.” Davis, 2046.

43. Subject, obviously, to some limitations, such as with non-consenting partners.

44. Davis, Id. See Zablocki, 434 U.S. at 375–77.

45. See Elaine Cook, Commitment in Polyamory, ELEC. J. HUM. SEXUALITY 8 (2005).

46. See Bennett, Only You.

47. Davis, Regulating Polygamy at 2029.

48. Lawrence, 539 U.S. at 558.

49. Ethan Bronner, Adultery: An Ancient Crime That Remains on Many Books, N.Y. TIMES, Nov. 14, 2012, www.nytimes.com.

50. See Emens at 299 with accompanying notes: See Siegel, For Better or for Worse, at 55 (noting that half of all husbands report having committed adultery and that somewhere between a third to forty percent of all wives say they have been unfaithful) at fn. 105. See also Weis, Adult Heterosexuality, at 1508: “Researchers [of adultery in America] have reported lifetime prevalence rates from as low as 20 percent . . . to nearly 75 percent.” The American data on adultery are consistent with those of other major western nations. Dr. Judith Mackay, Senior Policy Advisor for the World Health Organization, reports that “40% of sexually active 16–45-year-old Germans admit to having been sexually unfaithful, compared with 50% of Americans, 42% of British, 40% of Mexicans, 36% of the French, and 22% of the Spanish.” Bear in mind that these figures reflect only those subjects who admit to infidelity. See Judith Mackay, Global Sex: Sexuality and Sexual Practices around the World, FIFTH CONGRESS OF THE EUROPEAN FEDERATION OF SEXOLOGY (2000), http://www2.hu-berlin.de, quoted in Emens, Monogamy’s Law, at fn. 105 Adultery has also been part of popular culture for a very long time; we even study it. Homer’s Iliad and Odyssey both revolve around adultery and potential adultery; see also Tolstoy’s Anna Karenina, Hawthorne’s Scarlet Letter, and the list goes on and on.

51. See List of Federal Political Sex Scandals, WIKIPEDIA, http://en.wikipedia.org (last visited January 29, 2015), for just a partial list of sex scandals involving American federal politicians.

52. Emens at 300.

53. https://en.wikipedia.org/wiki/Adultery#United_States.

54. Lawrence v. Texas, 539 U.S. 558 (2003).

55. Id. at 559.

56. Bronner, supra n. 51 quoting Melissa Murray. See also Lisa Keen, Petraeus Scandal Conjured Recent LGBT Legal Skirmishes, WINDY CITY TIMES, Nov. 21, 2012, at 4, www.windycitymediagroup.com.

57. See generally Dossie Easton & Janet W. Hardy, The Ethical Slut: A Practical Guide to Polyamory, Open Relationships, and Other Adventures (2d ed. 2009).

58. Samantha Allen, “Polygamy Is More Popular than Ever.” The Daily Beast. NEWSWEEK/DAILy BEAST, 15 June 2015.

59. Barbara Bradley Hagerty, “Some Muslims in United States Quietly Engage in Polygamy.” National Public Radio (2008).

60. See Cassiah M. Ward, Note, I Now Pronounce You Husband and Wives: Lawrence v. Texas and the Practice of Polygamy in Modern America, 11 WM. & MARY J. WOMEN & L. 131, 132 (2004) (hereafter Ward, I Now Pronounce You).

61. I am certainly not arguing that adultery is to be encouraged. I think that David Barash said it well when he wrote, “There is no question about monogamy’s being natural. It isn’t. But at the same time, there is no reason to conclude that adultery is unavoidable, or that it is good. ‘Smallpox is natural,’ wrote Ogden Nash. ‘Vaccine ain’t.’ Animals, most likely, can’t help ‘doing what comes naturally.’ But humans can. A strong case can even be made that we are never so human as when we behave contrary to our natural inclinations, those most in tune with our biological impulses.” David P. Barash, Deflating the Myth of Monogamy, CHRONICLE OF HIGHER EDUC. (2001).

62. See Paula C. Rust, Monogamy and Polyamory: Relationship Issues for Bisexuals, in BISEXUALITY: THE PSYCHOLOGY AND POLITICS OF AN INVISIBLE MINORITY 127, 139 (Beth A. Firestein ed., 1996).

63. Christian Klesse, Polyamory and Its “Others”: Contesting the Terms of Non-Monogamy, 9.5 SEXUALITIES 565, 565–83 (2006) (hereafter Klesse, Polyamory). “The term polyamory came into general use during the 1990s [and] first appeared in a footnote in legal scholarship in 1997”; see Leane Renee, Impossible Existence: The Clash of Transsexuals, Bipolar Categories, and Law, 5 AM. U. J. GENDER & L. 343, 371 n.161 (1997). It first appeared in an article in 2000; see Martha Ertman, Contract Sports, 48, CLEV. ST. L. REV. 31, 31 (2000). D. Marisa Black, Study Note: Beyond Child Bride Polygamy: Polyamory, Unique Familial Constructions, and the Law, 8 J. L. & FAM. STUD. 497 (2006).

64. William Jankowiak & Emilie Allen, Adoring the Father: Religion and Charisma in an American Polygamous Community, in ANTHROPOLOGY AND THEOLOGY: GOD, ICONS, AND GOD-TALK 293–313 (Walter Randolph Adams & Frank Salamone eds., 2000), quoted in Kilbride et al., Plural Marriage, at 110.

65. Ertman, Marriage as a Trade, at 124–25 quoted in Emens at 304 and fn. 134.

66. Id. quoting Ertman at 124. See also Maura I. Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 CAP. UNIV. L. REV. 439, 454 (2003) (hereafter Strassberg, Challenge of Post-Modern Polygamy). Strassberg asserts that “the fundamental value of polyamory is relationship, particularly loving relationships” and that “the focus of polyamory is on ‘having and maintaining loving relationships that may or may not be sexual.’” In Emens fn. 135.

67. Emens, at 303. Loving More is the oldest magazine in the world dedicated exclusively to responsible multipartner relationships. See LOVING MORE, www.lovemore.com.

68. Terms, LOVING MORE, www.lovemore.com.

69. Id.

70. FAQs, LOVING MORE, www.lovemore.com.

71. Emens, Monogamy’s Law, at 355.

72. Id. at 308. See also fn. 50: “At least twenty-three states and the District of Columbia still have laws criminalizing adultery in some form. See ALA. CODE § 13A-13-2 (2003); ARIZ. REV. STAT. ANN. § 13-1408 (West 2003); COLO. REV. STAT. § 18-6-501 (2003); D.C. CODE § 22-201 (2001); FLA. STAT. ANN. § 798.01 (West 2000); GA. CODE ANN. § 16-6-19 (Harrison, 1990); IDAHO CODE ANN. § 18-6601 (Michie 2003); 720 ILL. COMP. Stat. ANN. 5/11-7(a) (West 2002); KAN. STAT. ANN. § 21-3507(1) (2002); MD. CODE ANN., crim. § 10-501 (2002); MASS. GEN. LAWS ANN. ch. 272, § 14 (West 2000); MICH. COMP. LAWS ANN. § 750.30 (West 2003); MINN. STAT. ANN. § 609.36 (West 2004); MISS. CODE ANN. § 97-29-1 (1999); N.H. REV. STAT. ANN. § 645:3 (1996); N.Y. PENAL LAW § 2.55.17 (McKinney 2004); N.C. GEN. STAT. § 14-184 (2002); N.D. CENT. CODE § 12.1-20-09 (1997); OKLA. STAT. ANN. tit. 21, § 871 (West 2002); R.I. GEN. LAWS § 11-6-2 (2002); S.C. CODE ANN. § 16-15-60 (Law Co-op 2003); UTAH CODE ANN. § 76-7-103(1) (West 1999); VA. CODE ANN. § 18.2-365 (Michie 1996); and W.VA. CODE ANN. § 61-8-3 (Michie 2000). See also Kelly, Virginia Adultery Case, at B8. Prosecutions for adultery are rare. See, for example, Siegel, For Better or for Worse, at 45 n.5, 53 nn.54–57 (1991–91). But cf. Kelly, Virginia Adultery Case. They are, however, vigorously pursued in specialized contexts such as the military. See Haggard, Adultery, at 469–70, 476–77; and Winner, Beds with Sheets, at 1073–74.”

73. Emens, Monogamy’s Law, at 308. See id. fn. 158, noting that, “while both adultery and bigamy laws require the party at issue to be married, some bigamy laws do not require an additional marriage or even attempted marriage. In five states, the crime of bigamy covers mere extramarital cohabitation by a married person. See COLO. REV. STAT. § 18-6-201 (2003); GA. CODE ANN. § 16-6-20 (2003); R.I. GEN. LAWS § 11-6-1 (2002); TEX. PENAL CODE ANN. § 25.01 (Vernon 2003); and UTAH CODE ANN. § 76-7-101 (West 1999).”

74. Emens, id.

75. Davis, Regulating Polygamy, at 1969–70.

76. Davis, id. See Kay S. Hymowitz, I Wed Thee . . . and Thee . . . and Thee, WALL ST. J., Oct. 18, 2004, http://online.wsj.com (in Davis fn. 40). See also Benyamin Cohen, The Prince and I, AMERICAN JEWISH LIFE, Mar./Apr. 2007, www.ajlmagazine.com (Cohen discusses African Hebrew polygamists in Southwest Atlanta, Georgia); Engy Abdelkader, American Muslim Sister-Wives? Polygamy in the American Muslim Community, HUFFINGTON POST RELIGION BLOG (Oct. 17, 2011, 10:07 a.m.), www.huffingtonpost.com; and Andrea Useem, What to Expect When You’re Expecting a Co-Wife, ON FAITH: RELIGION BLOG OF THE WASH. POST (July 24, 2007, 12:12 p.m.), www.slate.com. Useem notes that “prominent American Imam Siraj Wahhaj, who was the first Muslim cleric to ever offer the invocation at the U.S. House of Representatives, was quoted in Paul Barrett’s 2007 book as saying that he performs polygamous unions at his Al-Taqwa mosque in Brooklyn, N.Y. ‘If a man can have a hundred girlfriends, and it’s legal, I don’t say you can’t have more than one wife.’” See Paul Barrett, American Islam (2007).

77. Kilbride et al., Plural Marriage, at 40.

78. Kilbride, id. quoting Miriam Zeitzen, Polygamy: A Cross-Cultural Analysis 166 (2008) (hereafter Zeitzen, Polygamy).

79. This, of course, is aside from the fundamentalist belief that plural marriage leads to salvation. See Val Waldeck, Mormons: What Do They Believe? (Kindle ed. 2011).

80. Davis, Regulating Polygamy, at 1970 (quoting U.S. CENSUS BUREAU, 2007 AMERICAN COMMUNITY SURVEY tbl. B13002B (2007), https://www.socialexplorer.com).

81. Barbara Bradley Hagerty, Philly’s Black Muslims Increasingly Turn Toward Polygamy, NAT’L PUB. RADIO (May 28, 2008), www.npr.org (hereafter Hagerty, Philly’s Black Muslims). And it is not just Philadelphia either; see Nina Bernstein, In Secret, Polygamy Follows Africans to N.Y., N.Y. TIMES, Mar. 23, 2007, www.nytimes.com.

82. See Empress Tsahai, Polygamy as a Choice for the Black Family (2002), www.rastafarispeaks.com.

83. Wing, Polygamy, at 858 quoted in Emens, at 333, fn. 327:

In my view, African Americans today face conditions in which de facto polygamy can flourish. A disproportionate number of our men are unavailable for marriage—due to early death, imprisonment, high unemployment, and intermarriage. More of our young women have obtained higher educations than the young men. Socially, we as Black women, like most women, have been reared to want men of an equal or higher social status. We have also been socialized to prefer our own men, to men from other racial/ethnic groups. A wealth of well employed and educated Black women seek a small pool of “suitable” men. The net result is that the few men have a surplus of women from which to select. They can be either de facto polygamists or womanizers. They can have children with multiple women and support none of them. Since the Civil Rights movement, more black men than women have taken advantage of the opportunity to date or marry outside the race, an act that could have resulted in a lynching in the past. The net result is that only 39% of Black women are married, compared to 60% of white women, and 67% of Black children are born out-of-wedlock compared to 25% of white babies. In the U.S. Constitution, Blacks were counted as three-fifths of a person for representation purposes. Today, some lonely women remain ready to have a much smaller piece than three-fifths of a man.

84. Gamal A. Badawi, Polygamy in Islamic Law (1976); see also Zeitzen, Polygamy.

85. See Hagerty, Philly’s Black Muslims.

86. Kilbride, Plural Marriage, at 143.

87. Patricia Dixon-Spear, We Want for Our Sisters What We Want for Ourselves: African American Women Who Practice Polygyny by Consent, xxxi (2009), quoted in Kilbride, 143.

88. Davis, at 1972. See also Victoria Robinson, My Baby Just Cares for Me: Feminism, Heterosexuality and Non-Monogamy, 6.2 J. GENDER STUD. 143, 143–57 (1997) (hereafter Robinson, My Baby Just Cares for Me).

89. Id. at 1972 See also Elisabeth Sheff, Strategies in Polyamorous Parenting, in UNDERSTANDING NON-MONOGAMIES 169, 169–81 (Meg Barker & Darren Langdridge eds., 2010) (hereafter Sheff, Strategies in Polyamorous Parenting); see also Elisabeth Sheff, Polyamorous Women, Sexual Subjectivity, and Power, 34.3 J. CONTEMP. ETHNOGRAPHY 251, 251–83 (2005) (hereafter Sheff, Polyamorous Women).

90. Davis, id. See also Maura I. Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 CAP. U. L. REV. 439, 463 (2003).

91. Davis, Regulating Polygamy, at 1973. See also Cheshire Calhoun, Who’s Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy, 42.3 SAN DIEGO L. REV. 1023, 1023–41 (2005). Id. at fn. 52.

92. Emens at 307. See Maura Strassberg, The Crime of Polygamy, 12 TEMP. POL. & CIV. RTS. L. REV. 353, 355 (2003) (hereafter Strassberg, Crime of Polygamy). Strassberg notes that “some poly commentators exclude polygyny ‘from the polyamory umbrella due to its sexism and heterosexism.’” Emens, fn. 147.

93. Elizabeth Joseph, My Husband’s Nine Wives, N.Y. TIMES, May 23, 1991, at A31, http://engl110fall11.wikispaces.com (hereafter Joseph, My Husband’s Nine Wives). Quoted in Emens, 315.

94. Id.

95. See Emens, fn. 113, citing to, Barbara Bergmann, Becker’s Theory of the Family: Preposterous Conclusions, 1.1, FEMINIST ECON. 141 (1995); Joan Iversen, Feminist Implications of Mormon Polygyny, 10 FEMINIST STUD. 505, 518 (1984) (hereafter Iversen, Feminist Implications): “(observing that ‘one cannot truly apply the term “feminist” to the Mormon plural wives because feminism and patriarchal religion are incompatible’);” it is important here to reiterate that nothing in this book is meant to defend any version of a practice that is harmful, abusive, or coercive, in theory or in application.

96. Bailey & Kaufman, Polygamy in the Monogamous World, at 127, quoting Nicholas Bala et al., Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports 9 (2005), citing B. Hutchison, Bountiful Women Defend Polygamy: “Silent No More”; Wives Allow Public Unprecedented Peek at Lifestyle, NATL. POST, Apr. 21, 2005, at A3, See also Chapter 4, citing additional studies that have likewise found many polygamous and satisfied wives in a variety of different cultures.

97. Daphne Bramham, The Secret Lives of Saints: Child Brides and Lost Boys in Canada’s Polygamous Mormon Sect 246 (2009), quoted in Bailey & Kaufman, Polygamy in the Monogamous World, at 127.

98. Emens at 333. See also fn. 325. “See Gary S. Becker, Polygamy and Monogamy in Marriage Markets, in A TREATISE ON THE FAMILY 80, 81–104 (1991).” See also Davis fn. 10, citing to similar conclusions found in Posner, Sex and Reason 253–60 (Posner also describes how polygamy affects bargaining power in courtship markets), as well as in M. Sigman, Everything Lawyers Know About Polygamy Is Wrong, 16 CORNELL J. L. & PUB. POL’Y 101, 106–7, n.27 (2006) and Emily J. Duncan, The Positive Effects of Legalizing Polygamy: Love Is a Many Splendored Thing, 15 DUKE J. GENDER L. & POL’Y 315, 316 (2008) (hereafter Duncan, Positive Effects).

99. Emens, id., and fn. 326, citing “Carol M. Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421, 432 (1992) (pointing out that, under a system of one-man/one-woman marriage, some women will end up with ‘loutish’ husbands who do not share in household duties, and observing that ‘even though they phrased it somewhat differently, some nineteenth-century Mormons thought that the [men’s] greater propensity for loutishness was a pretty good reason for plural marriage, where the more cooperative [men] got lots of wives and the less cooperative ones presumably got none.’) See also Julie Dunfey, Living the Principle of Plural Marriage: Mormon Women, Utopia, and Female Sexuality in the Nineteenth Century, 10 FEMINIST STUD. 523, 529 (1984). (Reporting nineteenth-century Mormon women’s praise of polygyny’s potential for pairing the few ‘good men’ with the many ‘good women.’)”

100. Joseph, My Husband’s Nine Wives, at A31. In the evenings they tend to eat a simple dinner because they would “rather relax and commiserate over the pressures of our work day than chew up our energy cooking and doing a ton of dishes.” As quoted in Emens, at 315.

101. Emens, at 333–34, quoting Bonnie Honig, Complicating Culture, BOSTON REV., Oct./Nov. 1997, at 30, 31.

102. Sigman, Everything Lawyers Know, at 171.

103. Id. at 171. It is also worth noting that the choice might not be between one spouse or two spouses but between some spouses or no spouses. Regardless of how it stacks up against what we think of as traditional marriage, some people might be better off in a plural marriage than in no marriage at all. See David L. Chambers, Polygamy and Same-Sex Marriage, 26 HOFSTRA L. REV. 81 (1997) and generally the Talmudic presumption that many people prefer any marriage to no marriage. See generally, Ruth Halperin-Kaddari, “Tav Lemeitav Tan Du Mi-Lemeitav Armalu: An Analysis of the Presumption.” The Edah Journal 4 (2004): 1.

104. Sigman at 172, quoted in Kilbride et al., Plural Marriage, at 160.

105. Id.

106. Ronald C. Den Otter, Is There Really Any Good Argument against Plural Marriage? (2009) in Kilbride at 210.

107. Emens, at 334. See also fn. 329, citing to “Iversen, Feminist Implications, at 518–19. (describing how Mormon polygyny was both feminist and antifeminist).”

108. Although, to be honest, as Kilbride describes at length, even in traditional Mormonism, “female cooperation extends even to courtship, where a wife, along with her husband, will actively woo a prospective new wife for the family. During the wedding, all the wives join hands with the couple, thus sealing their relationship with each other for an eternity. FLDS weddings are described by Bennion: ‘Women voice satisfaction in the “Law of Sarah” ceremony, which covenants women to each other for eternity. Ideally, the first wife agrees to link the second wife not only to her husband but also to herself in this life and the next. Through this eternal bond, women are encouraged to work together economically, socially and spiritually and, in some rare cases, sexually. These bonds are enhanced through the common feature of women courting other women as future co-wives.’” Janet Bennion, The Many Faces of Polygamy: An Analysis of the Variability in Modern Mormon Fundamentalism in the Intermountain West, in MODERN POLYGAMY IN THE UNITED STATES: HISTORICAL, CULTURAL, AND LEGAL ISSUES 173 (Cardell Jacobson & Laura Burto eds., 2011). Quoted in Kilbride, at 106.

109. Emens, at 334 and generally Section III.C.4. Others also note that refocusing could be healthy. “Refocusing the family away from monogamous couples is not a new idea. Martha Fineman has persuasively contended that the sexual dyad is extraordinarily fragile, so that families could be and should be organized around other social relationships, such as relations of dependency.” Ertman at 116, citing Fineman, Neutered Mother.

110. See Emens at 325 and accompanying notes, “This aspect of polyamory builds in part on a feminist understanding of monogamy as a historical mechanism for the control of women’s reproductive and other labor. See, for example, Deborah M. Anapol, 5 Polyamory: The New Love without Limits 47 (1997): (‘Monogamous marriage as we know it today is based on patterns established in Biblical times governing men’s ownership of women. In Biblical days the law prescribed that women be stoned to death for taking a lover, but men were allowed as many secondary wives or concubines as they could afford. For most of recorded history, the absolute authority of the husband over his wife has been taken for granted and male violence against disobedient wives has been considered natural and right.’) See also Robinson, My Baby Just Cares for Me, at 144 (arguing that ‘institutionalized monogamy has not served women’s best interests. It privileges the interests of both men and capitalism, operating as it does through the mechanisms of exclusivity, possessiveness and jealousy, all filtered through the rose-tinted lens of romance’).”

111. Davis, Regulating Polygamy, at 1963.

112. Emens at 334. Or legally negates them; see William P. LaPiana, Modern Coverture: Old Wine in Old Bottles, 16 N.Y.L. SCH. J. HUM. RTS. 181 (1999).

113. The Centers for Disease Control and Prevention (CDC) found in a national survey that 34 percent of adults in the United States had witnessed a man beating his wife or girlfriend, and that 14 percent of women report that they have experienced violence from a husband or boyfriend. More than one million women seek medical assistance each year for injuries caused by battering (Federal Bureau of Investigation; U.S. Department of Justice National Crime Victimization Survey [NCVS]; Horton, 1995, “Family and Intimate Violence”). Three to four million women in the United States are beaten in their homes each year by their husbands, ex-husbands, or male lovers (Women and Violence, Hearings before the U.S. Senate Judiciary Committee, August 29 and December 11, 1990, Senate Hearing 101-939, pt. 1, at 12). One woman is beaten by her husband or partner every fifteen seconds in the United States (Uniform Crime Reports, Federal Bureau of Investigation, 1991). Statistics and information available online at www.clarkprosecutor.org.

114. See Abuse Not Unique to Polygamy, B.C. Court Told, CANADIAN PRESS, Dec. 15, 2010, www.cbc.ca.

115. Altman & Ginat, Polygamous Families, quoted in Strassberg, Crime of Polygamy, at 398.

CHAPTER 4. CHILDREN OF PLURAL MARRIAGES: A FIRST EMPIRICAL LOOK

1. See above, Chapter 1 note 8.

2. See Elisabeth Sheff. The Polyamorists Next Door: Inside Multiple-Partner Relationships and Families. Rowman & Littlefield, 2013. See also Mark Goldfeder & Elisabeth Sheff, Children of Polyamorous Families: A First Empirical Look, 4 J. SOC. DEVIANCE 150, 150–243 (2013) (hereafter Goldfeder & Sheff, Children of Polyamorous Families). Much of this chapter is drawn from that article, with permission, and further citations are omitted.

3. Criminal Code of Canada, B.C.S.C. § 293 (2011).

4. Wendy Stueck, B.C. Supreme Court Judge to Rule on Landmark Polygamy Case, GLOBE & MAIL, Nov. 22, 2011, www.theglobeandmail.com (hereafter Stueck, B.C. Supreme Court Judge). (In Canadian law, a reference question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Reference questions typically concern the constitutionality of the legislation in question. http://en.wikipedia.org/wiki/Reference_question.)

5. Id.

6. Criminal Code of Canada, B.C.S.C. § 293 (2011).

7. Id.

8. See Mae Kuykendall, Equality Federalism: A Solution to the Marriage Wars, 15 U. PA. J. CONST. L. 377 (2012); Marie Ashe, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 TEMP. POL. & CIV. RTS. L. REV. 163, 214 (2011).

9. See Angela Campbell, Wives’ Tales on Research in Bountiful, 17 IUS GENTIUM 247, 247–67 (2012).

10. See Stueck, B.C. Supreme Court Judge.

11. Reynolds, 98 U.S. at 145.

12. “These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land.” Id.

13. See Judith Stacey & Tey Meadow, New Slants on the Slippery Slope: The Politics of Polygamy and Gay Family Rights in South Africa and the United States, 37.2 POLITICS & SOCIETY 167, 167–202 (2009); see also Edward Ashbee, Polyamory, Social Conservatism and the Same-Sex Marriage Debate in the US, 27.2 POLITICS 101, 101–7 (2007); and Ann E. Tweedy, Polyamory as a Sexual Orientation, 79 U. CIN. L. REV. 1461, 1461–1513 (2011).

14. See Martha Ertman, Race Treason: The Untold Story of America’s Ban on Polygamy, COLUM. J. GENDER & L. (2010); Claire A. Smearman, Second Wives’ Club: Mapping the Impact of Polygamy in U.S. Immigration Law, 27 BERKLEY J. INT’L L. 382 (2009) (hereafter Smearman, Second Wives’ Club); Kristin Eliasberg, Sodomy Flaw: How the Courts Have Distorted the History of Anti-Sodomy Laws in America, SLATE, Mar. 25, 2003, www.slate.com; Ward, I Now Pronounce You, at 131; and Sigman, Everything Lawyers Know; Ronald C. Den Otter, In Defense of Plural Marriage. Cambridge University Press, 2015.

15. Smith, 494 U.S. at 872.

16. See generally Sealing, Polygamists Out of the Closet.

17. Id. at 695 citing Church of the Lukumi Babalu Aye v. City of Hialeah, 508, 546–47 U.S. 520 (1993).

18. See Sherbert v. Verner, 374 U.S. 398 (1963).

19. Reynolds, 98 U.S. at 164: “Polygamy has always been odious among the northern and western nations of Europe; and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.”

20. Davis, 133 U.S. at 342. The court further condemned Mormonism, and not just polygamy, by noting that bigamy and polygamy “tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind.” Kildbride notes that “Lawrence Foster believes that the existence of polygamy posed a cultural threat to many Americans because it was so vastly different from the Victorian family ideal, primarily monogamy and sexual restraint, which had been established in the country. ‘Throughout this period, a new genre of anti-polygamy novels and “true stories of life under polygamy” developed, primarily by people who had never been near Utah. . . . This anti-polygamy literature is very similar to anti-Catholic and anti-foreign writings of the antebellum period. It relies heavily on stereotyped characters and seems to constitute a . . . Victorian pornography.’” Lawrence Foster, Religion and Sexuality: Three American Communal Experiments of the Nineteenth Century 221 (1981) In Kilbride at 93. In the nineteenth century, the newly formed Republican Party connected polygamy and slavery, dubbing them the “twin relics of barbarism.” Den Otter writes that “The American government was not the only agent of persecution. In 1883, the Edmunds Act banned polygamy and unlawful cohabitation and set up a federal commission to administer test oaths compelling voters to swear that they were neither bigamists nor polygamists, and Mormons who refused to take these oaths were barred from public service and voting. During the 1880s, the federal government prosecuted more than 1,300 Mormons for the religious practice of polygyny. In 1887, the Edmunds-Tucker Act disinherited the children of plural marriages and disenfranchised Mormons who advocated polygamy even when they did not practice polygamy. In 1890, due to intense pressure from the federal government, as a condition of statehood for Utah, the Mormon Church formally repudiated polygamy.” See Den Otter, In Defense.

21. In regard to the alleged compelling state interest, “the various antipolygamy statutes and constitutional provisions attack only the religiously based practice of polygamy but ignore a host of threats to the supposedly compelling interest of maintaining the traditional Christian monogamous family unit as the basic building block of society,” such as no-fault divorce and unmarried cohabitation. Sealing, Polygamists Out of the Closet, at 736. Even if only rational basis is triggered, the legislative classification cannot be rooted in prejudice or animus against a politically unpopular group. Romer v. Evans establishes that animus is an insufficient reason for unequal treatment. See Romer v. Evans, 517 U.S. 620 (1996); Cleburne v. Cleburne Living Center, 473 U.S. 472 (1985); Plyer v. Doe, 457 U.S. 202 (1982); and United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973).

22. Sealing, Polygamists Out of the Closet, at 695.

23. Smith, 494 U.S. at 872.

24. Id.

25. Sealing at 737. See generally Stephanie Forbes, Comment, “Why Just Have One?” An Evaluation of the Anti-Polygamy Laws under the Establishment Clause, 39 HOUSTON L. REV. 1517 (2003). But see also Richard A. Vasquez, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. LEGIS. & PUB. POL’Y 225 (2001).

26. Smith, 494 U.S.

27. See generally Sealing, Polygamists Out of the Closet.

28. See Jonathan Turley, Complaint for Declaratory, Injunctive, and Other Relief, Brown v. Herbert, http://jonathanturley.files.wordpress.com.

29. Id. See also Isaak, “What’s in a Name?” at 612.

30. Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America, 28.1 J. S. CT. HIST. 14 (2003) in Kilbride at 169.

31. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639–40 (1974).

32. National ACLU Policy on Polygamy, Policy 91, April 1991 (current policy), www.acluutah.org.

33. Brown v. Buhman (2013) (Case No. 2:11-cv-0652). Although the Tenth Circuit ended up dismissing the case and overturning the ruling based on technical standing grounds (see Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016)), the arguments are now teed up for the next case that will undoubtedly arise.

34. See Den Otter, In Defense, discussing how, at least according to Justice Scalia’s dissents over time, Justice Kennedy’s majority opinions in Romer, Lawrence, and Windsor have laid the groundwork for a constitutional right to same-sex marriage, and arguably polygamy, on equal protection grounds. Obergefell might have also added to the list of concerns the right to dignity. See Rex D. Glensy, The Right to Dignity, 43 COLUM. HUM. RTS. L. REV. 65, 70 (2011).

35. See, for instance, Lawrence, 539 U.S. at 562: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

36. See Samantha Slark, Are Anti-Polygamy Laws an Unconstitutional Infringement on the Liberty Interests of Consenting Adults? 6 J. L. & FAM. STUD. 453 (2004) (hereafter Slark, Are Anti-Polygamy Laws).

37. See Craig v. Boren, 429 U.S. 190 (1976).

38. Baskin, 766 F.3d at 658–59; Walker, 135 S. (citations omitted).

39. Id.

40. Obergefell v. Hodges, 576 U.S. (2015) at 14.

41. Id.

42. See generally Brieanne M. Billie, The “Lost Boys” of Polygamy: Is Emancipation the Answer? 12 J. GENDER, RACE & JUST. 127 (2008).

43. Sheff, Polyamorous Women. See also Elisabeth Sheff, Poly-Hegemonic Masculinities, 9.5 SEXUALITIES 621, 621–42 (2006).

44. B.C. Reference Case at [231]. See Strassberg, Challenge of Post-Modern Polygamy, at 483–86.

45. According to a survey conducted by Robyn Trask (the executive director of Loving More, the national polyamorous magazine) in which one thousand self-identifying polyamorists participated (representing roughly four thousand people), polyamorists represent quite a religiously diverse but highly educated group. “Twenty-eight percent identified as Christian, 9 percent were Eastern religions, 30 percent were pagan, 29 percent were atheist or agnostic, and 4 percent were other. An overwhelming majority of this sample group—87 percent—had been raised Christian, and only 11 percent had been brought up as either atheist or agnostic.” Four percent had a high school diploma, “26 percent had some college education, 30 percent had a college degree, and 40 percent had been to graduate school or had earned a graduate degree.” In Kilbride et al., Plural Marriage, at 80.

46. Maura Strassberg, Distinguishing Polygamy and Polyamory under the Criminal Law, in EXPLODING THE NUCLEAR FAMILY IDEAL (Daniela Cutas & Sarah Chan eds., 2012), www.bloomsburyacademic.com.

47. There have been studies about children in particular polygynous communities, but those are not as helpful contextually. Researchers even found that cultural factors play a role in determining the extent to which risk factors associated with polygamy negatively affect children and noted that in a culture in which polygamy was not only tolerated but valued, and where women were respected equally, things would look quite different. See Bailey & Kaufman, Polygamy in the Monogamous World, at 140.

48. The law does not wait for a child to be harmed before responding; while some courts differ on the exact level of risk inherent in a “best interests of the child” scenario, all would agree that a substantial threat of harm is problematic. See, for instance, Amy Fry, Polygamy in America: How the Varying Legal Standards Fail to Protect Mothers and Children from its Abuses, 54 ST. LOUIS U. L. J. 967 (20100), discussing how this has tended to play out in traditional polygamy (as opposed to polyamory) cases.

49. See Utah Att’y Gen. Off., The Primer: A Guidebook for Law Enforcement and Human Services Agencies Who Offer Assistance to Fundamentalist Mormon Families 53–59 (Jan. 2011), http://attorneygeneral.utah.gov (this catalogs and discusses laws that can be used against polygamists in various states). In Hawaii, the second marriage is merely annulled. See Slark, Are Anti-Polygamy Laws, at 453, cited in Den Otter, In Defense.

50. See Daphne Bramham, Tradition of Monogamous Marriage Traced in Polygamy Hearing, VANCOUVER SUN, Jan. 11, 2011, http://stoppolygamyincanada.wordpress.com.

51. Criminal Code of Canada, B.C.S.C. § 293 (2011).

52. Davis, Regulating Polygamy, at 2028.

53. Davis at 2028 citing to Joyce A. Martin et al., Ctrs. for Disease Control & Prevention, Births: Final Data for 2006.

54. Id.

55. See Rebekah J. Smith, Family Caps in Welfare Reform: Their Coercive Effects and Damaging Consequences, 29 HARV. J. L. & GENDER 151 (2006).

56. While some states do have “family cap laws” for welfare reform, the issues of monogamous marriage, plural marriage, or no marriage at all is irrelevant. Id.

57. Davis at 2029–2030.

58. Id.

59. Id. at 2030.

60. Id. quoting Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 GA. L. REV. 649, 651 (2008).

61. Davis, Regulating Polygamy, at 2030.

62. McKinley Irvin, 32 Shocking Divorce Statistics, FAMILY LAW BLOG (Oct. 30, 2012), www.mckinleyirvin.com (based on statistics from the U.S. Census Bureau).

63. Davis, Regulating Polygamy, at 2030. See also Carter v. Brodrick, 644 P.2d 850, 853–56 (Alaska 1983) (this case construed statute broadly to enable stepparent visitation rights). In Davis, fn. 50.

64. Id. See generally Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Redefining Families, Reforming Custody Jurisdiction, and Refining Support Issues, 34 FAM. L. Q. 607, 608 (2001), citing Troxel v. Granville, 530 U.S. 57, 63–64 (2000), where Justice O’Connor draws from the U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS: MARITAL STATUS AND LIVING ARRANGEMENTS (March 1998). He remarks that 5.6 percent of children in America live with their grandparents rather than their parents. Quoted in Jami L. Crews, When Mommy’s a Minor: Balancing the Rights of Grandparents Raising Grandchildren against Minors’ Parental Rights, 28 L. & PSYCHOL. REV. 133, 148 (2004). By the 2000 Census, that number had gone up to 7 percent. Id. at 134.

65. See also Will Boggs, Assisted Reproduction Rates Increasing Worldwide, REUTER’S HEALTH, June 4, 2009, www.reuters.com.

66. Davis, Regulating Polygamy, at 2030. See also Elizabeth A. Delaney, Statutory Protection of the Other Mother: Legally Recognizing the Relationship between the Nonbiological Lesbian Parent and Her Child, 43 HASTINGS L .J. 177 (1991).

67. LaChapelle v. Mitten, 607 N.W.2d 151 (Minn. Ct. App. 2000). See also C. v. G. & E., 225 N.Y.L.J., No. 9, at 29 (col. 4) (N.Y. Cnty. Sup. Ct. Jan 12, 2001); Thomas S. v. Robin Y., 618 N.Y.S.2d 356 (App. Div. 1994); and Kevin Gray, Florida Judge Approves Birth Certificate Listing Three Parents, REUTERS, Feb. 7, 2013, http://ca.news.yahoo.com (hereafter Gray, Florida Judge Approves).

68. See Elizabeth Marquardt, When 3 Really Is a Crowd, N.Y. TIMES, July 16, 2007, www.nytimes.com. Marquardt describes Jacob v. Shultz-Jacob 923 A.2d 473 (Penn. SupeR. 2007).

69. See Gray, Florida Judge Approves and Marquardt, When 3 Really Is a Crowd: “The idea of assigning children three legal parents is not limited to North America. In 2005, expert commissions in Australia and New Zealand proposed that sperm or egg donors be allowed to ‘opt in’ as a child’s third parent. That same year, scientists in Britain received state permission to create an embryo from the DNA of three adults, raising the real possibility that they could all be granted equal legal claims to the child if the embryo developed to term.”

70. Davis, Regulating Polygamy at 2030. See also Naomi Cahn, Perfect Substitutes or the Real Things? 52 DUKE L. J. 1077 (2003). Cahn traces and contextualizes the social and legal history of adoption law. See also Spencer v. Franks, 195 A. 306, 308 (Md. 1937) (this case issues an adoption decree giving birth parents permission to “occasionally see the child”); In re F., 406 A.2d 986, 989 (N.J. Super. Ct. Ch. Div. 1979) (this case grants two children the right to visit their birth father after adoption); In re McDevitt, 162 N.Y.S. 1032, 1033 (Sup. Ct. 1917) (this case describes a postadoption visitation agreement between a birth mother and a paternal aunt); Rodgers v. Williamson, 489 S.W.2d 558, 560 (Tex. 1973) (this case discusses an adoption decree permitting a father’s visitation with his son after stepparent adoption); William Meezan & Joan F. Shireman, Care and Commitment: Foster Parent Adoption Decisions 220 (1985) (these authors assert that such open adoptions will become more frequent as foster parents continue to adopt older children); and Stuart L. Deutsch & Carol Amadio, Open Adoption: Allowing Children to “Stay in Touch” with Blood Relatives, 22 J. FAM. L. 59, 83–85 (1984) (these authors describe established procedures in Illinois for open adoptions of foster children), cited in Annette Ruth Appell, Blending Families through Adoption: Implications for Collaborative Adoption Law and Practice, 75 B.U. L. REV. 997, 1061, n.77 (1995) (hereafter Appell, Blending Families).

71. Id. Davis, Regulating Polygamy, at 2030–31. See, for example, Stacy Furukawa, U.S. Dep’t of Commerce, Series P70, No. 38, THE DIVERSE LIVING ARRANGEMENTS OF CHILDREN: SUMMER 1991, 3–4 (1994). Furukawa reports that only 50.8 percent of all children live in nuclear families composed of only two parents and their biological children, 22.0 percent live with two-parent families in which one or both parents are not their biological parents, 24.0 percent live in one-parent families, and 1.7 percent live with their grandparents rather than their parents. See also Katharine T. Barlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984), quoted in Appell, Blending Families, at 1061 n.69; and Martha L. Minow, Redefining Families: Who’s In and Who’s Out? 62 U. COLO. L. REV. 269 (1991).

72. Davis, at 2031. See John Lawrence Hill, What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353, 376 (1991). And see Stanley v. Illinois, 405 U.S. 645 (1972). This is the first of four Supreme Court cases to address the right of an unmarried father to establish or maintain a legally recognized relationship with his child, holding that a state may not make marriage a sine qua non for ascription of paternal rights. See also Katharine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 VA. L. REV. 879 (1984); Candace M. Zierdt, Make New Parents but Keep the Old, 69 N.D. L. REV. 497 (1993); Kris Franklin, A Family Like Any Other Family: Alternative Methods of Defining Family Law, 18 N.Y.U. REV. L. & SOC. CHANGE 1027 (1990) (Franklin examines the differences between the nuclear family and its alternatives and asserts that the nuclear family does not accurately reflect the realities of our society and that what constitutes “the family” has become a hotly contested political issue); and Katharine K. Baker, Bionormativity and the Construction of Parenthood, 42 GA. L. REV. 649, 651 (2008) (footnote omitted). Cf. Annette Ruth Appell, Controlling for Kin: Ghosts in the Postmodern Family, 25 WIS. J. L. GENDER & SOC’Y 73, 78 (2010). Appell discusses the persistence of biological connections in adoptive, reprotech, and stepfamilies and suggests the law take lessons from contact norms utilized in adoption law.

73. Id. See Kristine L. Burks, Redefining Parenthood: Child Custody and Visitation When Nontraditional Families Dissolve, 24 GOLDEN GATE U. L. REV. 223, 230 (1994). See also DiFonzo, fn. 71 quoting Cahn, Moral Complexities, at 228. “Supporters of pluralistic family configurations maintain that moral discourse about the family has not disappeared. Rather, it has diverged from a focus on ‘fault, sexuality, and patriarchal privileges’ within families comprising of two married parents of opposite sex and their biological offspring, shifting to a consideration of ‘fairness, equity, and caregiving’ within ‘kinships of responsibility.’” Id. at 228–29. DiFonzo also cites to Woodhouse, “It All Depends,” at 587 and Katharine T. Bartlett, Saving the Family from the Reformers, 31 U.C. DAVIS L. REV. 809, 816 (1998) (hereafter Bartlett, Saving the Family). Bartlett favors ‘respect or moral accommodation for a broad range of family forms that are capable of providing nurturing environments to its members.’ See also Michèle Alexandre, Lessons from Islamic Polygamy: A Case for Expanding the American Concept of Surviving Spouse so as to Include De Facto Polygamous Spouses, 64 WASH. & LEE L. REV. 1461, 1464 (2007). Alexandre advocates “that a redefinition of the concept of the surviving spouse in American estate distribution will help to legally protect de facto spouses in the inheritance context.” See generally Susan Frelich Appleton, Parents by the Numbers, 37 HOFSTRA L. REV. 11 (2008) (Appleton distinguishes biological, functional, and estoppel [a parent by estoppel is a parent who, though not classified as a parent under traditional legal principles, assumed “full and permanent responsibilities as a parent” with the acquiescence of the child’s legal parents] approaches to parental multiplicity); Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Nonbiological Lesbian Coparents, 50 BUFF. L. REV. 341 (2002) (describing courts’ use of equitable doctrines to determine legal relationship of lesbian coparents and children); and Melanie B. Jacobs, Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents, 9 J. L. & FAM. STUD. 309, 310 (2007): “Doctrines such as intentional and functional parenthood have been applied by courts to legalize the co-parentage of a child by a nonbiological gay or lesbian partner.” See, for example, Potter, 585 F. Supp. at 1142 n.7 (this case notes that the plaintiff, fired from his job as a police officer for practicing polygamy, had sought the admission during discovery that “the high rate of divorce in the United States has often turned today’s American familial relationships into a form of serial polygamy”), aff’d, 760 F.2d 1065 (10th Cir. 1985) (this affirmed the district court’s rejection of plaintiff’s free exercise and privacy-based challenge to his termination) 2; and Maillu, Whiteman’s Polygamy, at 29, quoted in Emens, Monogamy’s Law, at 298 fn. 100. See also Rock-Salting the Slippery Slope: Why Same-Sex Marriage Is Not a Commitment to Polygamous Marriage, 29 N. KY. L. REV. 521, 544 (2002). See generally J. Thomas Oldham, A.L.I. Principles of Family Dissolution: Some Comments, U. ILL. L. REV. 801, 831 (1997). See also Marvin M. Moore, The Significance of a Divorced Father’s Remarriage in Adjudicating a Motion to Modify His Child Support Obligations, 18 CAP. U. L. REV. 483 (1989); Jennifer E. Horne, The Brady Bunch and Other Fictions: How Courts Decide Child Custody Disputes involving Remarried Parents, 45 STAN. L. REV. 2073, 2074 (1993); and Edward R. Anderson & Shannon M. Greene, Beyond Divorce: Research on Children in Repartnered and Remarried Families, 51 FAM. CT. REV. 119 (2013).

74. Kaitlin R. McGinnis, Sister Wives: A New Beginning for United States Polygamist Families on the Eve of Polygamy Prosecution? 19 VILL. SPORTS & ENT. L. J. 249, 275 (2012) (hereafter McGinnis, Sister Wives). See fn. 6 citing to “Joanna L. Grossman & Lawrence M. Friedman, ‘Sister Wives’: Will Reality Show Stars Face Prosecution for Polygamy in Utah? FINDLAW’S WRIT (Oct. 4, 2010), http://writ.news.findlaw.com (stating that the Brown family does not appear to violate other criminal laws often violated by polygamists, such as child marriage, rape, or sex with minors, meaning the state will have to determine whether to prosecute the Brown family for polygamy ‘in its purest form’); ‘Sister Wives’ Bigamy Prosecution Would Be Rare, FOX NEWS (Oct. 8, 2010), www.foxnews.com (stating review of Utah bigamy prosecutions revealed no recent prosecutions for bigamy that were unaccompanied by some form of child-endangerment crime because of lack of resources to prosecute all polygamists solely for the crime of bigamy); and Ben Winslow, Utah Co. Prosecutors Want to See ‘Big Picture’ of Prosecuting Reality TV Polygamists, FOX 13 NEWS (Sept. 28, 2010), www.fox13now.com (citing information from Utah Attorney General’s Office indicating that Office does not typically prosecute polygamy alone because of lack of resources and instead opts to prosecute polygamy only when accompanied by other crimes such as underage marriages),” Id. at 249. See generally Timothy Egan, The Persistence of Polygamy, N.Y. TIMES, Feb. 28, 1999, www.nytimes.com (Egan shows that no one has been prosecuted for polygamy alone in Utah in almost fifty years). Id. See also Martin Guggenheim, Texas Polygamy and Child Welfare, 46 HOUS. L. REV. 759, 810 (2009); and Julie Cart, Utah Paying a High Price for Polygamy, L.A.TIMES, Sept. 9, 2001, www.rickross.com.

75. Altman & Ginat, Polygamous Families, quoted in Strassberg, Crime of Polygamy, at 398. See also Duncan Positive Effects, at 332.

76. Bennion, The Many Faces of Polygamy, at 166 cited in Kilbride, at 108.

77. Id. See also Janet Bennion, Women of Principle: Female Networking in Contemporary Mormon Polygamy (1998).

78. Duncan, Positive Effects, at 332, quoting Bella Stumbo, No Tidy Stereotype: Polygamists; Tale of Two Families, L.A. TIMES, May 13, 1988, Part 1, at 1.

79. Kilbride, p. 102, discussing Jessie L. Embry, Mormon Polygamous Families (1987).

80. Lawrence, 539 U.S. at 567. There is additional Supreme Court precedent here as well, including Moore v. City of East Cleveland, 431 U.S. 494 (1977). See McGinnis, Sister Wives, at 279. “Moore involved a zoning ordinance that limited occupancy of dwellings to members of a single family. Appellant Moore was charged with violating the ordinance because she lived in a home with her son and two grandsons, an arrangement that did not meet the ordinance’s definition of ‘family.’ Moore argued that the ordinance violated her substantive due process rights under the Fourteenth Amendment, and a plurality of the court agreed. Specifically, the court stated, ‘the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns’ (506). Consequently, although not as on point as Lawrence, Moore is another opinion that suggests that family and other personal relationships should be free from government intrusion absent a state interest sufficient to meet the Court’s level of scrutiny.”

81. Duncan at 316.

82. Id.

83. Duncan, Positive Effects, at 316.

84. See Amy Fry, Polygamy in America: How the Varying Legal Standards Fail to Protect Mothers and Children from Its Abuses, 54 ST. LOUIS U. L .J. 967, 992 (2010).

85. In re Black, 283 P.2d 887, 912–13, 901 (1955). This case proposed that there is enough harm for the court to remove the children based solely on the fact that polygamy was practiced in their presence and that they were encouraged to believe and engage in plural marriage. In Jana B. Singer, The Privatization of Family Law, at 1467.

86. Sanderson v. Tryon, 739 P.2d 623, 627 (Utah 1987). In Singer at 1468. See Amy Fry, Polygamy in America: How the Varying Legal Standards Fail to Protect Mothers and Children from Its Abuses, 54 ST. LOUIS U. L .J. 967, 978 (2010): This case held that “a parent’s extra-marital sexual relationship alone is insufficient to justify a change in custody,” and therefore, evidence the mother is practicing polygamy is insufficient on its own to support the lower court’s finding. Instead, the court found “polygamous practices should only be considered as one among many other factors regarding the children’s best interests.”

87. Singer, at 1468 and accompanying notes: See Matter of Adoption of W.A.T., 808 P.2d 1083, 1085 (Utah 1991): “The fact that our constitution requires the state to prohibit polygamy does not necessarily mean that the state must deny any or all civil rights and privileges to polygamists. It is true that bigamy is a crime in Utah and that one of the petitioners here is concededly a bigamist. The same portion of the criminal code (‘Offenses Against the Family’) which makes bigamy a crime, however, also criminalizes adultery, fornication, nonsupport of children, surrogate parenthood contracts, and unauthorized abortions. See generally UTAH CODE ANN. §§ 76-7-101, 101-325 (West 1999). Innumerable other acts are of course defined as crimes by other portions of the criminal code. It is not the role of trial courts to make threshold exclusions dismissing without consideration, for example, the adoption petitions of all convicted felons, all persons engaging in fornication or adultery, or other persons engaged in other illegal activities. There is likewise no legitimate basis for the courts to disqualify all bigamists (polygamists) as potential adopters.”

88. Id. See also Fry at 998, discussing In re Texas Dept. of Fam. & Protective Serv., 255 S.W.3d 613 (Tex. 2008), where the court agreed with the appellate court finding that the Texas statute required a showing of “imminent” harm to determine whether children were in danger and needed to be removed, and that the fact that the mothers were practicing polygamy did not constitute that kind of harm. See also Glendon, The Transformation of Family Law, at 39; Ralph Slovenko, The De Facto Criminalization of Bigamy, 17 J. FAM. L. 297 (1978); R. Michael Otto, Note, Wait ’Til Your Mothers Get Home: Assessing the Rights of Polygamists as Custodial and Adoptive Parents, UTAH L. REV. 881 (1991), in Singer, fn. 104.

89. Kate Kendell, Lesbian and Gay Parents in Child Custody and Visitation Disputes, HUM. RTS., Summer 2003, at 8.

90. See Elaine S. Cook, Commitment in Polyamorous Relationships 58 (2005). “All of those who commented on children [in this study] thought that polyamory was beneficial for the children. Other adults can help raise the kids. If the other adults are local, ‘The kids are never on the shorts for somebody who can pay attention to them.’ The kids have more role models. The parents suggested I interview both the child and her older stepsister, but I told them that that would have to wait for a different study. This is that study.” See also Strassberg, The Challenge of Post-Modern Polygamy, p. 463.

91. Id. See Anderson, Polygamists, at 50.

92. Id. See also T. L. Williams, Polyamory vs. Swinging . . . What’s the Difference? LALA LAND (June 27, 2011, 5:30 p.m.), http://ladaewillims.blogspot.com.

93. Kenneth R. Haslam, The 12 Pillars of Polyamory, POLYAMOROUS PERCOLATIONS, May 15, 2008 (adapted from a lecture given to Polyamorous NYC on Mar. 19, 2008), www.polyamoryonline.org/articles/12pillars.html.

94. Maria Pallotta-Chiarolli, Peter Haydon & Anne Hunter, These Are Our Children: Polyamorous Parenting, in LGBT-PARENT FAMILIES 117, 117–31 (Katherine Allen & Abbie Goldberg eds., 2013).

95. See generally Maria Pallotta-Chiarolli, Polyparents Having Children, Raising Children, Schooling Children, 7.1 LESBIAN & GAY PSYCH. REV. 48, 48–53 (2012); and Meg Barker & Darren Langdridge, Understanding Non-Monogamies (2010).

96. Elizabeth Sheff, who conducted the study this chapter discusses, recently published a book on the topic (Sheff, Elizabeth. The Polyamorists Next Door: Inside Multiple-Partner Relationships and Families. Rowman & Littlefield, 2013). The claim is made here that the family structure that would be made possible in a new version of legalized plural marriage would look a lot more like committed polyamory than traditional polygyny, and so although there might be some differences, this is the community we will focus on.

97. The initial wave of data collection (1996–2003) focused on adults in polyamorous relationships, some of whom had children. The second wave of data collection (2007–2008) concentrated on polyamorous adults who were members of families with children, and the third wave of data collection (2009–2012) focused on children in polyamorous families and their relevant adults. The total sample for all three waves of data collection came to 131 interviewees—22 of whom were children between the ages of 5 and 17—and roughly 500 people involved in participant observation. Participants selected their own pseudonyms. Data analysis involved a modified form of grounded theory. See Kathy Charmaz, Grounded Theory: Objectivist and Constructivist Methods, in HANDBOOK OF QUALITATIVE RESEARCH 509, 509–35 (N. K. Denzin & Y. S. Lincoln eds., 2d ed. 2000). The grounded theory is a method that has proven particularly useful in other family studies. See also Ralph LaRossa, Grounded Theory Methods and Qualitative Family Research, 67 J. MARRIAGE & FAM. 837, 837–57 (2005) (LaRossa employs inductive data-gathering methods); and John Lofland & Lynn Lofland, Observation and Analysis (1995). For constant comparative methods, see Barney Glaser & Anslem Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (1967). For more details on the study itself and how it was conducted, see Elisabeth Sheff, The Polyamorists Next Door: Inside Multiple-Partner Relationships and Families. Rowman & Littlefield, 2013.

98. Larry Constantine & Joan Constantine, Group Marriage: A Study of Contemporary Multilateral Marriage (1973).

99. Maria Pallotta-Chiarolli, Border Sexualities: Border Families in Schools (2010) (hereafter Pallotta-Chiarolli, Border Sexualities); Meg Barker & Darren Langdridge, Developing a Responsible Foster Care Praxis: Poly as a Framework for Examining Power and Propriety in Family Contexts, in UNDERSTANDING NON-MONOGAMIES (2010).

100. Christopher Carrington, No Place Like Home: Relationships and Family Life among Lesbians and Gay Men (1999); Katherine Weston, Families We Choose: Lesbians, Gays, and Kinship (1999).

101. See Pallotta-Chiarolli, Border Sexualities, at 214. Pallotta-Chiarolli discusses how some of her respondents were invested in portraying their polyamorous families as “perfect.”

102. For more on the children in these other populations, see Donna K. Ginther & Robert A. Pollak, Family Structure and Children’s Educational Outcomes: Blended Families, Stylized Facts, and Descriptive Regressions, 41.4 DEMOGRAPHY 671, 671–96 (2004). See also Judith S. Wallerstein & Joan B. Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (1996); and Barbara Bilge & Gladis Kaufman, Children of Divorce and One-Parent Families: Cross-Cultural Perspectives, FAM. REL. 59, 59–71 (1983).

103. Goldfeder & Sheff, Children of Polyamorous Families.

104. For a closer look at those communities, see Victoria Clarke, Celia Kitzinger & Jonathan Potter, Kids Are Just Cruel Anyway: Lesbian and Gay Parents’ Talk About Homophobic Bullying, 43.4 BRITISH J. SOC. PSYCHOL. 531, 531–50 (2004). See also Robert Oscar Lopez, Witherspoon Institute, Growing Up with Two Moms: The Untold Children’s View (2012), www.thepublicdiscourse.com.

105. Goldfeder & Sheff, Children of Polyamorous Families.

106. Id.

107. Larry Constantine & Joan Constantine, Group Marriage: Marriages of Three or More People; How and Why They Work 155 (1973).

108. See generally Erik Erikson, Childhood and Society (1950).

109. See Sheff, Strategies in Polyamorous Parenting.

110. See Goldfeder & Sheff, Children of Polyamorous Families, at 205 (interview by Elisabeth Sheff with “Jocelyn”).

111. See id. at 206 (interview by Elisabeth Sheff with “Mina”).

112. Id.

113. Sheff, Strategies in Polyamorous Parenting.

114. Klesse, Polyamory, at 565–83. See also Jin Haritaworn, Chin-ju Lin & Christian Klesse, Poly/logue: A Critical Introduction to Polyamory, 9.5 SEXUALITIES 515 (2006).

115. Sheff, Strategies in Polyamorous Parenting.

116. Goldfeder & Sheff, Children of Polyamorous Families, at 203 (interview by Elisabeth Sheff with “Marcus”).

117. See id. at 211 (interview by Elisabeth Sheff with “Kethry”).

118. Id.

119. Id. at 215 (interview by Elisabeth Sheff with “Cole”).

120. Id.

121. See Susan D. Stewart, Brave New Stepfamilies: Diverse Paths toward Stepfamily Living (2007).

122. See Goldfeder & Sheff, Children of Polyamorous Families, at 211 (interview by Elisabeth Sheff with “Kethry”).

123. See Edward Kruk, Promoting Co-Operative Parenting after Separation: A Therapeutic/Interventionist Model of Family Mediation, 15.3 J. FAM. THERAPY 235, 235–61 (1993). See also Lawrence A. Kurdek, A 1-Year Follow-Up Study of Children’s Divorce Adjustment, Custodial Mothers’ Divorce Adjustment, and Postdivorce Parenting, J. APPLIED DEVELOPMENTAL PSYCHOL. 315, 315–28 (1988).

124. See Goldfeder & Sheff, Children of Polyamorous Families, at 215 (interview by Elisabeth Sheff with “Cole”).

125. See id. at 214 (interview by Elisabeth Sheff with “Zane”).

126. See Constance Ahrons, We’re Still Family: What Grown Children Have to Say About Their Parents’ Divorce (2004). See also Michael J. Markoff, Stepfamily Law: Review and Proposals for Change, 18 SUFFOLK U. L. REV. 701 (1984); and Alison Harvison Young, This Child Does Have 2 (or More) Fathers—Step-Parents and Support Obligations, 45 MCGILL L .J. 107 (2000).

127. See Goldfeder & Sheff, Children of Polyamorous Families, at 211 (interview by Elisabeth Sheff with “Kethry”).

128. Id.

129. See id. at 214, 227 (interviews by Elisabeth Sheff with “Zane” and “Melissa”).

130. See generally Gill Gorell Barnes, Stepfamilies, 4.1 ADVANCES IN PSYCHIATRIC TREATMENT 10, 10–16 (1998).

131. See Walter R. Gove, Michael Hughes & Omer R. Galle, Overcrowding in the Home: An Empirical Investigation of Its Possible Pathological Consequences, AM. SOC. REV. 59, 59–80 (1979). These authors discuss overcrowding and when it is an issue.

132. See Goldfeder & Sheff, Children of Polyamorous Families, at 203, 230–31 (interviews by Elisabeth Sheff with “Marcus” and “Cassie”).

133. Id.

134. See id. at 214 (interview by Elisabeth Sheff with “Zane”).

135. See generally Joan Pulakos, Correlations between Family Environment and Relationships of Young Adult Siblings, 67.3f PSYCHOL. REP. 1283, 1283–86 (1990). See also Melinda E. Baham et al., Sibling Relationships in Blended Families, in THE INTERNATIONAL HANDBOOK OF STEPFAMILIES: POLICY AND PRACTICE IN LEGAL, RESEARCH, AND CLINICAL SPHERES 175, 175–207 (2008); William Jankowiak & Monique Diderich, Sibling Solidarity in a Polygamous Community in the USA: Unpacking Inclusive Fitness, 21.2 EVOLUTION & HUM. BEHAV. 125, 125–39 (2000).

136. See Goldfeder & Sheff, Children of Polyamorous Families, at 234 (interviews by Elisabeth Sheff with “Ben” and “Melissa”).

137. See Susan Bartell, Sexually Involved Stepsiblings, BONUS FAMILIES, www.bonusfamilies.com. See also Jeanne Belovitch, Making Remarriage Work (1987); and Tasha R. Howe, Marriages and Families in the 21st Century: A Bioecological Approach (2011).

138. For more details and excerpts from interviews, see Elisabeth Sheff, The Polyamorists Next Door: Inside Multiple-Partner Relationships and Families. Rowman & Littlefield, 2013.

139. See J. Rainer Twiford, Joint Custody: A Blind Leap of Faith? 4.2 BEHAV. SCI. & L. 157, 157–68 (1986).

140. See Rauch, Gay Marriage, at 33: “Marriage, compared with cohabitation, brings much more stability and security in that married couples suffer legal consequences by separating, while cohabitation entails no legal ramifications upon separation. A husband is much less likely to walk away when times get tough than a boyfriend or domestic partner” (37–38). Quoted in Austin Caster, Why Same-Sex Marriage Will Not Repeat the Errors of No-Fault Divorce, 38 W. ST. U. L. REV. 43, 55 (2010).

141. See Bennion, Polygamy in Primetime; and Project MUSE, http://muse.jhu.edu. See also Schilling, Love, American Style; and Phillips & Dooley, Modern Polygamist Family.

142. See J. Dunn, Sibling Influences on Childhood Development, 29 J. CHILD PSYCHOL. & PSYCHIATRY 119 (1988); and A. L. Miller, B. L. Volling & N. L. McElwain, Sibling Jealousy in a Triadic Context with Mothers and Fathers, 9 SOC. DEV. 433 (2000).

143. Dawn Braithwaite et al., Becoming a Family: Developmental Processes Represented in Blended Family Discourse, 29.3 J. APPLIED COMM. RES. 221, 221–47 (2001).

144. Lindsay M. Monte, Blended but Not the Bradys: Navigating Unmarried Multiple Partner Fertility, in UNMARRIED COUPLES WITH CHILDREN 183–203 (2007).

145. Alan Richardson, Rethinking Romantic Incest: Human Universals, Literary Representation, and the Biology of Mind, 31.3 NEW LITERARY HIST. 553, 553–72 (2000).

146. Frank D. Cox, Human Intimacy: Marriage, the Family, and Its Meaning 514 (2005) (internal quotation omitted).

147. Andrew J. Cherlin, The Marriage-Go-Round: The State of Marriage and the Family in America Today (2010).

148. See Sheff, Strategies in Polyamorous Parenting.

149. See supra for a discussion on inner-city Philadelphia and its recent embrace of plural marriage.

150. Davis, Regulating Polygamy at 2013. See also Ertman, Marriage as a Trade, at 125; and Strassberg, Challenge of Post-Modern Polygamy, at 439.

151. Joseph Goldstein et al., The Best Interests of the Child: The Least Detrimental Alternative xiii (1996). In fact, when discussing the case of Jacob v. Shultz-Jacob, the 2007 Pennsylvania case with three legal biological parents, Professor Arthur Leonard writes that in deciding where children would go in the event of the breakup of this family, the standard to be used, even for a triad, is always the best interests of the child. See Abigail Ruth, Pennsylvania Court Finds Three Adults Can Have Parental Rights, LANCASTER (May 1, 2007, 8:13 p.m.), http://culturecampaign.blogspot.com.

152. Elizabeth Brake, Minimal Marriage: What Political Liberalism Implies for Marriage Law, 120 ETHICS 318 (2010).

153. Lawrence, 539 U.S. at 560, 123 S. Ct. 2472, 2474, 156 L. Ed. 2d 508 (2003).

154. United States v. Windsor, 133 S. Ct. 2675 (2013).

155. See generally Nancy C. Marcus, Deeply Rooted Principles of Equal Liberty, Not “Argle Bargle”: The Inevitability of Marriage Equality After Windsor, 23 TUL. J. L. & SEXUALITY 17 (2014).

156. See Chapter 6.

CHAPTER 5. LEGALIZING PLURAL MARRIAGE

1. Kilbride et al., Plural Marriage, at 149–50.

2. Andrew Sullivan, State of the Union, NEW REPUBLIC, May 8, 2000, www.newrepublic.com.

3. Obergefell v. Hodges, No. 14-556, 2015 WL 2473451, at 16 (U.S. June 26, 2015).

4. Loving, 388 U.S. at 1.

5. Baker v. Nelson, 409 U.S. 810 (1972).

6. Diane J. Klein, Plural Marriage and Community Property Law, 40 GOLDEN GATE U. L. REV. 33, 40 (2010) (hereafter Klein, Plural Marriage).

7. Id. and fn. 32: “citing ARIZ. CONST. art. XX, par. 2; IDAHO CONST. art. I, § 4; N.M. CONST. art. XXI, § 1; OKLA. CONST. art. I, § 2; and UTAH CONST. art. III, § 1. See also Romer v. Evans, 517 U.S. 620, 648 (1996) (Scalia, J., dissenting). However, even those states whose constitutions prohibit polygamy have the power to change this. See, for example, Barlow v. Blackburn, 798 P.2d 1360 (ARIZ. CT. APP. 1990. (holding that the antipolygamy clause in the state constitution was not void under equal footing doctrine (U.S. CONST. art. 4, § 3, cl. 1), on the theory that it was included solely to satisfy the requirements of the Enabling Act so that Arizona could gain statehood; whatever the limitations imposed by the Enabling Act, Arizona has had full power since statehood to repeal the antipolygamy clause.” Id. It would likely have also required the overturning of the marital definition in DOMA, which the Supreme Court has already done (see introduction).

8. Klein, Plural Marriage, at 40–41.

9. See id. For an example of a typical antibigamy statute, see CAL. FAM. CODE § 2201(a), which provides that “a subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void [from the beginning,] unless: (1) the former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage. (2) the former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.” This law might be amended to add an additional exception for valid plural marriages registered with the state. Klein, Plural Marriage, at 41. The same is true of criminal law statutes.

10. Samuel Chapman, Polygamy, Bigamy and Human Rights Law 56 (2001) (hereafter Samuel Chapman, Polygamy, Bigamy).

11. See generally Davis.

12. Ertman, Marriage as a Trade, at 129.

13. Polyamory, WIKIA, See also http://marriage-equality.blogspot.com/2013/04/revisiting-legal-nitty-gritty-of.html.

14. Id.

15. Id.

16. Ertman, Marriage as a Trade, at 129.

17. See REV. UNIF. PARTNERSHIP ACT § 202, 6 U.L.A. 27 (1997). This act permits use of partnership only by an “association of two or more persons to carry on as co-owners a business for profit.”

18. See Larry E. Ribstein & Robert R. Keatinge, Ribstein & Keatinge on Limited Liability Companies § 4:10, nn.5–6 (2d ed. 2004). These authors discuss the purpose limitations in LLC statutes.

19. Larry E. Ribstein, Incorporating the Hendricksons, 35 WASH. U. J .L. & POL’Y 285 (2011) (hereafter Ribstein, Incorporating the Hendricksons), quoting Henry Hansmann and Reinier Kraakman, The Essential Role of Organized Law, 110 YALE L. J. 387, 393 (2000).

20. Ribstein, Incorporating the Hendricksons, at 285.

21. See, for instance, New York FCA Sec. 412: Married person’s duty to support spouse: “A married person is chargeable with the support of his or her spouse and, if possessed of sufficient means or able to earn such means, may be required to pay for his or her support a fair and reasonable sum, as the court may determine, having due regard to the circumstances of the respective parties.” See also Orr v. Orr, 440 U.S. 268, 268, 99 S. Ct. 1102, 1105, 59 L. Ed. 2d 306 (1979).

22. See Craig Reaves, Paying for the Institutionalized Spouse, N.Y. TIMES, June 4, 2010, http://newoldage.blogs.nytimes.com.

23. Ribstein, Incorporating the Hendricksons, at 293.

24. Id.

25. Id.

26. Id.

27. Polyamory, WIKIA, See also http://marriage-equality.blogspot.com/2013/04/revisiting-legal-nitty-gritty-of.html.

28. See, for example, Larry J. Young, The Neural Basis of Pair Bonding in a Monogamous Species: A Model for Understanding the Biological Basis of Human Behavior. In National Research Council (U.S.) Panel for the workshop on the Biodemography of Fertility and Family Behavior. K. W. Wachter, R. A. Bulatao, editors, OFFSPRING: HUMAN FERTILITY BEHAVIOR IN BIODEMOGRAPHIC PERSPECTIVE. Washington, DC: National Academies Press, 2003. Available from http://www.ncbi.nlm.nih.gov/books/NBK97287.

29. See, for example, Davis, along with Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1779 (2005); Jennifer A. Drobac & Antony Page, A Uniform Domestic Partnership Act: Marrying Business Partnership and Family Law, 41 GA. L. REV. 349, 353 (2007), discussed in Ribstein, n. 2.

30. Ribstein, Incorporating the Hendricksons, at 274. See also Davis, Regulating Polygamy, at 1955 (Davis argues for the partnership model for polygamous relationships).

31. Id. at 275. See also Ertman, Marriage as a Trade fn. 25–26 citing Jana B. Singer, Alimony and Efficiency: The Gendered Costs and Benefits of the Economic Justification for Alimony, 82 GEO. L .J. 2423 (1994). “Katherine Wells Meighan has proposed that contributions to one spouse’s education be accounted for at divorce under a corporate finance model. Katherine Wells Meighan, For Better or for Worse: A Corporate Finance Approach to Valuing Educational Degrees at Divorce, 5 GEO. MASON L. REV. 193 (1997). Cf. A. Mechele Dickerson, To Love, Honor, and (Oh!) Pay: Should Spouses Be Forced to Pay Each Other’s Debts? 78 B.U. L. REV. 961 (1998) (applying corporate model to marital debt); and Teemu Ruskola, Conceptualizing Corporations and Kinship: Comparative Law and Development Theory in a Chinese Perspective, 52 STAN. L. REV. 1599 (2000) (asserting that traditional Chinese family law functioned similarly to modern American corporate law).” Id.

32. See generally Margaret Jane Radin, Contested Commodities (1996).

33. Ribstein, Incorporating the Hendricksons, at 275, 277. See also Larry E. Ribstein, The Rise of the Uncorporation 24–38 (2010); and Larry E. Ribstein, A Standard Form Approach to Same-Sex Marriage, 38 CREIGHTON L. REV. 309, 317–21 (2005).

34. Ribstein, Incorporating the Hendricksons, at 278. See also Ribstein, A Standard Form Approach to Same-Sex Marriage, at 319.

35. See also Ira Mark Ellman, Paul M. Kurtz & Elizabeth S. Scott, Family Law: Cases, Text, Problems, 967–72 (3rd. ed. 1998).

36. Allison A. Marston, Planning for Love: The Politics of Prenuptial Agreements, 49 STAN. L. REV. 887, 901 (1997). See generally Lenore J. Weitzman, The Marriage Contract: Spouses, Lovers, and the Law 243 (1981) (hereafter Weitzman, Marriage Contract).

37. Id. at 902, quoting American Bar Association, Your Legal Guide to Marriage and Other Relationships 15–16 (1989).

38. Maynard, 125 U.S. at 213, quoting Noel v. Ewing, 9 Ind. 37, 50 (1857).

39. For a discussion of what marriage is and isn’t, see Scott &Scott, Marriage as Relational Contract, at 1230.

40. See, for instance, Jewell’s Lessee v. Jewell, 42 U.S. 219, 233, 11 L. Ed. 108 (U.S.S.C. 1843) (this case notes that marriage is a civil contract). See also 52 AM. JUr. 2d, Marriage § 4: Marriage has sometimes been said to be contractual in nature. In this regard, it has variously been stated that by law, marriage is a contract and that it is a civil contract, analogous to a partnership agreement, between people with the capacity to contract for such marriage, by which a man and a woman take each other for husband and wife. It has also been stated that a marriage is a three-party contract between the man, the woman, and the state. Similarly, marriage has sometimes been said to be a personal relation that arises from a civil contract and to be a present agreement to be husband and wife and to assume all rights and duties of the marital relationship.

41. Id. at 1999–2000. See also fn. 144, citing “Andrew Blair-Stanek, Comment Defaults and Choices in the Marriage Contract: How to Increase Autonomy, Encourage Discussion, and Circumvent Constitutional Constraints, 24 TOURO L. REV. 31, 34 (2008) [hereafter Blair-Stanek, Defaults and Choices].”

42. See Barbara Ann Atwood, Ten Years Later: Lingering Concerns About the Uniform Premarital Agreement Act, 19 J. LEGIS. 127, 146 (1993), cited in Blair-Stanek, at 34.

43. Martson at 903, citing to Singer, Privatization of Family Law, at 1443 (Singer discusses the transformation in family law from public to private ordering of behavior). See also Matthew P. Bergman, Status, Contract, and History: A Dialectical View, 13 CARDOZO L. REV. 171, 172 (1991): “During periods of social change, status . . . will give way to contract,” id.

44. Id. “A premarital agreement is a contract. As required for any other contract, the parties must have the capacity to contract in order to enter into a binding agreement.” UNIF. PREMARITAL AGREEMENT ACT § 2 (1983). The UPAA also draws upon contract and commercial law for the standard of unconscionability. See § 6 cmt.

45. Posner v. Posner, 233 So. 2d 381, 385 (Fla. 1970). See Blair-Stanek, Defaults and Choices, at 41.

46. Id. See also fn. 45 citing Brooks v. Brooks, 733 P.2d 1044, 1049–51 (Alaska 1987) (this case listed reasons modern courts prefer to enforce premarital agreements), and Simeone v. Simeone, 581 A.2d 162, 168 (Pa. 1990).

47. Margaret Ryznar & Anna Stepien-Sporek, To Have and to Hold, for Richer or Richer: Premarital Agreements in the Comparative Context, 13 Chap. L. Rev. 27, 30–31 (2009) (Hereafter Ryznar and Stepien-Sporek) citing UNIF. PREMARITAL AGREEMENT ACT § 1 (1983). See also fn. 19: “First, a prenuptial agreement may shield wealth acquired by one spouse before marriage from the other. See, for example, Osborne v. Osborne, 384 Mass. 591, 594, 428 N.E.2d 810, 813 (1981); DeLorean v. DeLorean, 211 N.J. Super. 432, 435, 511 A.2d 1257, 1259 (Ch. Div. 1986). Second, a prenuptial agreement may stipulate a division of property that is acquired during marriage. See, for example, Ferry v. Ferry, 586 S.W.2d 782, 783 (Mo. Ct. App. 1979); Gant v. Gant, 329 S.E.2d 106, 109 & n.1 (W.Va. 1985). Third, the contract may predetermine the amount and timing of support one spouse will pay to the other after separation or divorce. See, for example, Lewis v. Lewis, 748 P.2d 1362, 1364 (1988); and Volid v. Volid, 6 Ill. App. 3d 386, 387–88, 286 N.E.2d 42, 43–44 (1972). Finally, some commentators have advocated the use of prenuptial agreements to structure the terms of the ongoing relationship. See Weitzman, Marriage Contract, at 225–54; and Shultz, Contractual Ordering of Marriage, at 219–23.”

48. Blair-Stanek at fn. 46, citing “Sandy Cohen, Untying the Knot, Celeb-Style, VENTURA COUNTY STAR, Dec. 20, 2005, Life, Arts & Living, at 1 (listing actual premarital agreement terms including financial penalties for failing random drug tests, impoliteness to in-laws, or more than one football game per Sunday).” In Blair-Stanek, Defaults and Choices, at 41.

49. Id. at 41. See also fn. 48, citing Gary Belsky, Living by the Rules, CNN MONEY, May 1, 1996 (hereafter Belsky, Living by the Rules).

50. See for example Ryznar and Stepien-Sporak, at 31 and fn. 20, noting that they can do this by opting out of their state’s default property distribution scheme. “See, for example, Christine Davis, Note, Til Debt Do Us Part: Premarital Contracting around Community Property Law—An Evaluation of Schlaefer v. Financial Management Service, Inc., 32 ARIZ. ST. L. J. 1051, 1055–57 (2000) (describing the effects on creditors of a prospective spouse’s decision to opt out of a default community property regime through a premarital agreement); and Deborah H. Bell, Equitable Distribution: Implementing the Marital Partnership Theory through the Dual Classification System, 67 MISS. L. J. 115 (1997) (examining both default property distribution regimes in the United States).”

51. Whorton v. Dillingham, 248 Cal. Rptr. 405, 407 (Ct. App. 1988). Again, it is not illegal for a group of people to live together and contract about their living arrangements and responsibilities, or to have any sexual relationship that they want. If there was enough of a contract without the sexual implications, a court would likely decide that the sexual aspects were irrelevant.

52. Marston at 891.

53. Marriage as Contract and Marriage as Partnership: The Future of Antenuptial Agreement Law, 116 HARV. L. REV. 2075, 2083-2084 (2003) (hereafter Marriage as Contract).

54. Id. citing UNIF. PREMARITAL AGREEMENT ACT § 6(a)(1).

55. Id. citing RESTATEMENT (SECOND) OF CONTRACTS §§ 18–21 (1981) (this lists mutual assent and intent to be legally bound as requirements for a valid contract).

56. Id. ALI Principles, § 7.04(1).

57. Id. ALI Principles, at § 7.04(3).

58. Blair-Stanek, Defaults and Choices, at 43.

59. Id., citing ALASKA STAT. § 34.77.030 (2007).

60. Id. LA. REV. STAT. ANN. § 9:293 (2007). See also Marriage as Contract, at 2075. “Other states, including Arizona, Arkansas, and Kansas, have followed suit, and while legislation has been introduced to create legal covenant marriage in a number of other states, including California, Florida, Georgia, Indiana, Iowa, Maryland, Minnesota, Mississippi, Missouri, Nebraska, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, and West Virginia, these efforts have not, to date, been successful.” “Covenant Marriage,” Omics International, http://research.omicsgroup.org/index.php/Covenant_marriage.

61. HARV. L. REV. at 2090.

62. Some polygamous countries, like Ghana and Mali, have different forms of marriage that participants can choose from, some monogamous and some polygamous. See Bailey & Kaufman, Polygamy in the Monogamous World, at 16–18.

63. Blair-Stanek at 10. See fn. 38 “Courts of both law and equity were passing on the validity of premarital agreements in the sixteenth century. See 5 William Holdsworth, A History of English Law 310, 311 (3d ed. 1945).”

64. See generally BABYLONIAN TALMUD, Ketubot (literally tractate of marriage contracts); see also Philip Goodman & Hanna Goodman, The Jewish Marriage Anthology 87 (1965). In the Bible, Laban sets a precedent for a postnuptial agreement by telling (the admittedly already polygamous Jacob) not to marry any other wives.

65. A. Cowley, Aramaic Papyri of the Fifth Century, B.C. 45–46 (1967).

66. See 12 ENCYCLOPEDIA JUDAICA, at 259; and Ze’ev W. Falk, Jewish Matrimonial Law in the Middle Ages 5 (1966).

67. See Raffia Arshad, Islamic Family Law (2010). See also Attila Ambrus, Erica Field & Maximo Torero, Muslim Family Law, Prenuptial Agreements, and the Emergence of Dowry in Bangladesh, 125.3 Q. J. ECON. 1349, 1349–97 (2010).

68. In Islamic parts of South Africa, the default is monogamy, but polygamy is allowed—if accompanied by a court-approved prenuptial agreement. See Bailey & Kaufman, Polygamy in the Monogamous World, at 36. In other countries, such as Iraq, Indonesia, Bangladesh, Malaysia, the Philippines, Singapore, and Pakistan, polygamy is allowed subject to a strict checklist of requirements that needs an official stamp of judicial approval. Id. at 46, 56–66.

69. Susan Simpson, How to Legalize Polygamous Marriage, http://viewfromll2.com/2010/08/07/how-to-legalize-polygamous-marriage/.

70. Id.

71. Id.

72. Id.

73. Davis, Regulating Polygamy, 2007. See also Strassberg, Challenge of Post-Modern Polygamy, at 439.

74. Id.

75. See Geri Weitzman et al., What Psychology Professionals Should Know About Polyamory (2009).

76. See Davis, Regulating Polygamy, at 2008 (Davis suggests that polygamy should follow commercial partnership law, including the Revised Uniform Partnership Act’s costly unanimity rules).

77. Or forced exit. See Davis, id.

78. Id. at 2012.

79. Id.

80. For a similar idea, see Shahar Lifschitz, Married against their Will? Toward a Pluralist Regulation of Spousal Relationships, 66 WASH. & LEE L. REV. 1535 (2010); see also William N. Eskridge Jr., Family Law Pluralism: The Guided Choice Regime of Menus, Default Rules and Override Rules, 100 GEO. L.J. 1881 (2012).

81. Sealing, Polygamists Out of the Closet, at 754. See also Jorge Martin, English Polygamy Law and the Danish Registered Partnership Act: A Case for Consistent Treatment of Foreign Polygamous Marriages and Danish Same-Sex Marriages in England, 27 CORNELL INTL. L. J. 419, 427 (1994). Truth be told, the effect that it would have on immigration issues might be the quickest and most important effect of legalizing plural marriage in America. See also Smearman, Second Wives’ Club, at 382. Smearman describes how polygamous families coming to America are forced to make the difficult choice of either splitting up or continuing their relationships illegally.

82. Sealing, Polygamists Out of the Closet, at 755.

83. See generally VT. STAT. ANN. tit. 14, §§ 401, 403, 404, 551 (1989), which could easily be modified to divide the available money and household goods among multiple wives. This, in fact, is how polygamous Kenya deals with the issue. See Bailey & Kaufman, Polygamy in the Monogamous World, at 32–33. In other countries, such as Saudi Arabia and Iraq, each wife just gets an equal portion, notwithstanding any differences in their contributions to the marriage. Id. at 45 and 52.

84. Sealing, id.

85. Id.

86. Id. See In re Dalip Singh Bir’s Estate, 83 Cal. App. 2d 256, 188 P.2d 499 (Cal. Dist. Ct. App. 1948).

87. See Sealing, Polygamists Out of the Closet, at 755. See also fn. 443 “Thus, VT. STAT. ANN. tit. 18, § 1852 (1999), for instance, could be easily modified. It would seem to make no difference under the Patients’ Bill of Rights if the ‘immediate family members’ included more than one wife, as the term could include multiple siblings and multiple children without limit.”

88. Id. at 756. Loss of consortium is even easier than the others, because it has already moved away from a strict spousal standard. See DiFonzo, Unbundling Marriage, fn. 137. “For instance, in Lozoya v. Sanchez, 66 P.3d 948 (N.M. 2003), the New Mexico Supreme Court held that ‘a claim for loss of consortium is not limited to marriage partners.’ Id. at 951. In order to recover, an unmarried claimant ‘must prove a close familial relationship with the victim’ Id. at 957. In evaluating the proffered relationship, the trial court must consider a variety of factors: ‘the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and . . . whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life’s mundane requirements.’ Id. (quoting Dunphy v. Gregor, 642 A.2d 372, 378 [1994]).”

89. Id. at 756. Default rules might govern whether each spouse is entitled to a full recovery or a corresponding fraction.

90. Id. at 746.

91. Id. at 751.

92. Sealing, Polygamists Out of the Closet, at 756–57. In some countries, like South Africa, a polygamous marriage triggers an automatic community property regime. See Bailey & Kaufman, Polygamy in the Monogamous World, at 36.

93. Id., at 756–57.

94. See Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 CARDOZO L. REV. 1161, 1203 (2006).

95. Sealing, Polygamists Out of the Closet, at 756.

96. Id. at 757.

97. Samuel D. Brunson, Taxing Polygamy, 91 WASH. U. L. REV. 113 (2013).

98. Id. at 151–52.

99. Id. at 155.

100. Id. at 157.

101. Id. at 156–59.

102. The Tax Credit (Polygamous Marriages) Regulations 2003, No. 743 s. 50 (U.K.), quoted in Bailey & Kaufman, Polygamy in the Monogamous World, at 152.

103. In Angela Campbell et al., Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports. The Alberta Civil Liberties Research Center/Status of Women Canada’s policy Research Fund (2005), at 13.

104. Germany does this for social security as well, id. at 22.

105. See Great Britain Law Commission, Polygamous Marriages (Working Paper 24) (1968), quoted in Bailey & Kaufman, Polygamy in the Monogamous World, at 152.

106. For other approaches, see for instance Chapman, Polygamy, Bigamy, at ch. 4.

107. Davis, Regulating Polygamy, at 2019.

108. Senegal is an example of a country that has different forms of marital options available, and the option is for life. See Bailey & Kaufman, Polygamy in the Monogamous World, at 22.

109. Michèle Alexandre, Big Love: Is Feminist Polygamy an Oxymoron or a True Possibility? 18 HASTINGS WOMEN’S L. J. 3, 6 (2007).

110. See Legal Nitty Gritty of Polygamy, MARRIAGE EQUALITY (Feb. 16, 2013), http://marriage-equality.blogspot.com/2010/12/legal-nitty-gritty-of-polygamy.html.

111. Id. See also Drew A. Swank, The National Child Non-Support Epidemic, 2003 MICH. ST. DCL L. REV. 357, 374 (2003).

112. Id.

113. Id.

114. Id.

115. See Jessica Elgot, Brazil Approves Civil Union for Three People, Sparking Religious Fury, HUFFINGTON POST, Aug. 29, 2012, www.huffingtonpost.co.uk.

116. See Charles C. W. Cooke, Brazil Allows Three-Person Civil Union, CORNER, Aug. 28, 2012, www.nationalreview.com.

117. See Deni Kirkova, Here Comes the Bride, and Another One, and Another One! Meet World’s First Married Lesbian Threesome . . . and They’re Expecting a Baby Due in July, DAILY MAIL, Apr. 23, 2014, www.dailymail.co.uk.

CHAPTER 6. PLURAL MARRIAGE, REVISITED

1. See Sigman, Everything Lawyers Know; see also Strassberg, Crime of Polygamy, at 413; and Tenney, Tom Green, at 148.

2. Kerry Abrams, Marriage Fraud, 100 CAL. L. REV. 1, 5 (2012) (hereafter Abrams, Marriage Fraud).

3. Id.

4. Id. See also Laurence Drew Borten, Sex, Procreation, and the State Interest in Marriage, 102 COLUM. L. REV. 1089 (2002).

5. Id.

6. I.R.C. § 7703(a) (2006). See Abrams, fn. 67, citing for example, “Freck v. I.R.S., 810 F. Supp. 597 (D. Pa. 1992), vacated, 37 F.3d 986 (3d Cir. 1994) (ruling that a woman could not avoid tax liability as an ‘innocent spouse’ after she signed tax returns in which the man she was living with underreported their income and where the couple held themselves out as husband and wife and filed joint tax returns but were never married in a formal ceremony and their state of domicile did not recognize common-law marriage); and Lizalek v. Comm’r, 97 T.C.M. (CCH) 1639 (2009) (T.C. Memo 2009-122), 2009 WL 1530160 (holding a woman not liable for taxes on one-half of her unmarried partner’s income where they were ‘married under the laws of God’ but had no marriage certificate and their state of domicile did not recognize common-law marriage).”

7. United States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008) quoted in Abrams, at 17.

8. Abrams, Marriage Fraud, at 19.

9. Id. See fn. 83 citing Dedman, 527 F.3d at 577. This case stated, in dicta (the part of the opinion not considered the basis for the legal judgment, and therefore of authoritative but not binding precedent), that the court would not entertain a sham marriage claim because the rule preventing fraudulent marriage was a time-based rule and nothing in the statute referred to the spouses’ intent.

10. Id. 42 U.S.C. §§ 416(c)(1)(e), (g)(1)(e) (2004). New Jersey has a slightly less common age-based rule for determining surviving spouse benefits. “Under the New Jersey statute, a ‘surviving spouse’ is a person who married the employee ‘prior to the time when such employee reached the age of 50 years.’ The statute further limits the availability of benefits by stating that ‘no such surviving spouse shall be eligible for any benefit hereunder who was or shall be more than 15 years younger than the employee at the time of their marriage,’” obviously viewing such marriages with suspicion. Abrams at 20.

11. Id. at 21 citing Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 75–76 (Minn. 200010. UTAH CODE ANN. § 30-1-4.5 (LexisNexis 2007). See also State v. Holm, 137 P.3d 726 (Utah 2006) (this case upheld constitutionality of the Utah statute in light of Lawrence v. Texas); and State v. Green, 99 P.3d 820 (Utah 2004) (this case allowed unsolemnized and unlicensed marriage to serve as a predicate marriage for purposes of a bigamy prosecution).

12. Or even reverse-engineer putative marriage laws.

13. Id. at 29.

14. See Abrams, Marriage Fraud, at 26.

15. Id. at 30.

16. Id.

17. Abrams, Marriage Fraud, at 31, citing INA § 216(g).

18. INA § 216(a)(1).

19. Abrams, Marriage Fraud, at 32 and accompanying notes: “This evidence ‘may’ include but ‘is not limited to’ (1) documentation showing joint ownership of property; (2) lease showing joint tenancy of a common residence; (3) documentation showing commingling of financial resources; (4) birth certificate(s) of child(ren) born to the petitioner and beneficiary; (5) affidavits of third parties having knowledge of the bona fides of the marital relationship; and (6) any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States. 8 C.F.R. § 204.2(a)(1)(i)(B).” See also In re Soriano, 19 I. & N. Dec. 764, 766 (B.I.A. 1988) (this lists evidence of bona fides as including “proof that the beneficiary has been listed as the petitioner’s spouse on insurance policies, property leases, income tax forms, or bank accounts, and testimony or other evidence regarding courtship, wedding ceremony, shared residence, and experiences”).

20. http://www.nolo.com/legal-encyclopedia/submitting-evidence-good-faith-marriage-with-form-i-751.html.

21. Id. See fn. 163 citing Surganova v. Holder, 612 F.3d 901, 905 (7th Cir. 2010): “Nothing in the record indicates that the [Immigration Judge] was using an inflexible rule under which a marriage could never be bona fide without cohabitation. All he did was permissibly weigh the couple’s living arrangement as one of several factors supporting his ultimate conclusion.”

22. Id. at 34. “Often, much of an applicant’s file is filled with pictures of the wedding ceremony and reception, evidence that rings were exchanged, and pictures of the honeymoon.” Id. at fn. 65. “See, for example, United States v. Islam, 418 F.3d 1125, 1127 (10th Cir. 2005) (citing testimony regarding and pictures of wedding); Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004) (citing testimony regarding courtship and wedding ceremony as evidence of intent to establish a life together); United States v. Orellana-Blanco, 294 F.3d 1143, 1145 (9th Cir. 2002) (noting that husband and wife used a borrowed ring); United States v. Chowdhury, 169 F.3d 402, 404 (9th Cir. 2004) (noting that none of bride’s friends or family attended wedding ceremony, that the groom gave her a wedding ring but not an engagement ring, and that there was no formal reception or honeymoon).” Id. at 33. “Immigration examiners also ask couples questions during their interviews with the intent of determining whether their relationships are bona fide. Questions include ‘How much is your current rent/mortgage payment?’; ‘Are you paid weekly, every two weeks, twice a month or monthly? What about your spouse?’; ‘What is the name of your spouse’s manager at work?’ and ‘How much money did you receive in your last paycheck/deposit? What about your spouse?’” Id. at fn.16. See “Nina Bernstein, Could Your Marriage Pass the Test? CITY ROOM BLOG (June 11, 2010, 8:45 p.m.), http://cityroom.blogs.nytimes.com.” Id. at 33 “These questions, like the regulations, assume a shared economic life, something many couples have but many do not. Other questions include more intimate details, such as: ‘Where do you keep your clean underwear?’ ‘What about your spouse?’ ‘Do you and your spouse use birth control? What kind?’ and the infamous ‘What color is your toothbrush? What about your spouse’s?’”

23. Lutwak v. United States, 344 U.S. 604, 611 (1953).

24. Id. at 34 and fn. 170: For cases applying “establish a life” test. Id. fn. 170, “see also Boluk v. Holder, 642 F.3d 297, 303–4 (2d Cir. 2011); . . . Surganova v. Holder, 612 F.3d at 901 (7th Cir. 2010); and Cho v. Gonzales, 404 F.3d 96, 100, 103 (1st Cir. 2005); Nakamoto, 363 F.3d at 882 (9th Cir. 2004) (reaffirming ‘establish a life’ test); Bark v. I.N.S., 511 F.2d 1200, 1202 (9th Cir. 1975) (adopting ‘establish a life’ test).”

25. Lutwak, 344 U.S. at 611 (emphasis added).

26. Id at 37. “Thus, Ninth Circuit judges have found repeatedly that merely having a motive to marry in order to receive immigration benefits is ‘at most evidence of intent’ of marriage fraud but does not itself make the marriage a sham.” Id. at fn. 172. “See United States v. Tagalicud, 84 F.3d 1180, 1185 (9th Cir. 1996).” Id. at 35. “One opinion even cited the book of Genesis for the proposition that ‘marriages for money or other ulterior gain are as ancient as mankind, yet may still be genuine, and marriage fraud may be committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry.’ The court found that an ‘ulterior motive of financial benefit or immigration benefit’ for marriage might be evidence of fraud, but ‘it does not make the marriage a fraud.’”

27. Id.

28. Brake, Recognizing Care. See also R. F. Baumeister & M. R. Leary, The Need to Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117 PSYCHOL. BULL. 497, 497–529 (1995), cited in Blake, Recognizing Care.

29. And, as Blake points out, for most marital rights, which cost little and for which there is little incentive to abuse (i.e., caretaking leave, visitation, etc.), self-designation is appropriate and would likely be enough. See Brake, Recognizing Care.

30. See Shultz, Contractual Ordering of Marriage, at 204–334.

31. Cynthia M. Davis, The Great Divorce of Government and Marriage: Changing the Nature of the Gay Marriage Debate, 89 MARQ. L. REV. 795, 816 (2006). And see generally Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 Cardozo L. Rev. 1161 (2006) (although he argues for the abolition of civil marriage).

32. Buettner v. Buettner, 505 P.2d 600 (1973). See also Brooks, 733 P.2d at 1049 n.7, 1050 n.16; Newman v. Newman, 653 P.2d 728, 732 (Colo. 1982); Scherer v. Scherer, 292 S.E.2d 662, 665 (Ga. 1982); In re Marriage of Boren, 475 N.E.2d 690, 694 (Ind. 1985); and Osborne, 428 N.E.2d at 815.

33. Public policy rationales are best exemplified by the following articles: Scott, Rational Decisionmaking, at 69–70; and Twila L. Perry, Dissolution Planning in Family Law: A Critique of Current Analyses and a Look toward the Future, 24 FAM. L. Q. 77, 81–85 (1990).

34. Marriage as Contract, at 2098 quoting ALI Principles.

35. Kaylah Campos Zelig, Putting Responsibility Back into Marriage: Making a Case for Mandatory Prenuptials, 64 U. COLO. L. REV. 1223, 1231 (1993).

36. While not necessarily comparing their moral worth in this sense, arguments for legalizing plural marriage are similar to the case made for legalizing prostitution. “Many scholars believe the laws against the practice have only helped make life more difficult for prostitutes because the laws exclude them from legal protection, encouraging predators to take advantage of their ‘powerlessness.’ Polygamy like prostitution . . . is another area in which public policy could reflect practicality, not morality and in turn allow for more effective regulation.” Duncan, Positive Effects, at 332, citing to Scott A. Anderson, Prostitution and Sexual Autonomy: Making Sense of the Prohibition of Prostitution, 112 ETHICS 748, 749 (2002).

37. Id., at 333 quoting John Pomfret, Polygamists Fight to Be Seen as Part of Mainstream Society, WASH. POST, Nov. 21, 2006, at A1 (hereafter Pomfret, Polygamists Fight to Be Seen).

38. See generally Bailey & Kaufman, Polygamy in the Monogamous World, ch. 3. The authors discuss how strong-arm tactics have not worked and have only driven polygamists even deeper into the shadows.

39. Kody Brown, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs, v. Gary R. Herbert, Mark Shurtleff, Jeffrey R. Buhman, Defendants, WL 11554364 (D.Utah 2011).

40. Id.

41. See Nicholas Roccardi, Experts: Polygamy Still Remains; Authorities Focus on Underage Marriages among Splinter Mormon Groups, REDDING (California) RECORD SEARCHLIGHT, Sept. 28, 2007, quoted in Bailey & Kaufman, Polygamy in the Monogamous World, at 160. See also Duncan, 325 and 334.

42. See Schneider, Channeling Function.

43. See Kristen Scharnberg & Manya A. Brachear, Where the Polygamists Have White Picket Fences, L.A. TIMES, Oct. 15, 2006, at A12 (hereafter Scharnberg & Brachear, Where the Polygamists) in Duncan, Positive Effects, at 325, 334.

44. Duncan, Positive Effects, at 335.

45. Id. See Michael Janofsky, Conviction of a Polygamist Raises Fears among Others, N.Y. TIMES, May 24, 2001, at A14.

46. Duncan, Positive Effects, at 334. “Common sense tells us that a typical woman is less likely to leave a dysfunctional or even abusive relationship if she could be prosecuted for aiding and abetting other related crimes or being an accessory before or after the fact.” Den Otter, In Defense, citing Bennion, Polygamy in Primetime, at 256.

47. Duncan, Positive Effects, at 334.

48. See Kathryn Danes, More Wives than One: The Transformation of the Mormon Marriage System, 11840–1910 (2001).

49. Scharnberg & Brachear, Where the Polygamists in Duncan Positive Effects at 334.

50. Duncan, Positive Effects, at 334 citing Strassberg, Crime of Polygamy, at 369.

51. Id. at 334.

52. See BABYLONIAN TALMUD, Yevamot 44a and Maimonides, Hilchot Ishut 14:3.

53. Brake, Recognizing Care, citing Thom Brooks, The Problem with Polygamy, 37.2 PHILSOPHICAL TOPICS109 (2009); and Geri Weitzman, Therapy with Clients Who Are Bisexual and Polyamorous, 6.1–2 J. BISEXUALITY 137 (2006).

54. Elisabeth Sheff, presentation given to law students for Reproductive Justice at Georgia State University College of Law, Nov. 19, 2014.

55. See Singer, Privatization of Family Law, at 1531–65. Singer identifies four principle advantages of privatization: (1) it provides alternatives to traditional family structures (2) it respects diversity in family structures (3) it increases the degree of control exercised by participants in families, and (4) it increases private choice and autonomy. She also identifies five disadvantages of privatization: (1) it exacerbates existing gender inequalities; (2) it has detrimental effects on third parties, particularly children; (3) it interferes with family law reform efforts; (4) it perpetuates the public/private split; and (5) it inhibits public discourse to identify and develop shared values.

56. Ducan, Positive Effects, at 335. “Several local towns in Utah are already being forced to acclimate to polygynists. In St. George, Utah, for example, economics has necessitated the hiring of polygynist construction workers. Known for their work ethic rather than their beliefs, these particular polygynists are creating family-run construction companies, and town residents are adapting well. A new town café, called Merry Wives, has acknowledged polygamy through its name; and some residents have started to believe that polygamists should be ‘left alone.’” citing Kirk Johnson, In Polygamy Country, Old Divisions Are Fading, N.Y. TIMES, Sept. 10, 2007, at A18. In regard to the effect of television shows such as Big Love and Sister Wives on the American public’s attitude toward plural marriage, some experts think they are certainly helping to change the minds of those who might have once been averse to the practice. University of Virginia sociologist Andrea Press says that “these shows help people imagine the alternative and start normalizing our own experience against them.” Janet Bennion, an anthropologist at Lyndon State College in Vermont, writes that “Sister Wives and Big Love show that polygamy can work. . . . They show that polygamists are just regular people trying their best. They’re trying to live the American Dream.” Kilbride et al., Plural Marriage, at 6 (quoting Andres Press and Janet Bennion interviews).

57. Garrison, Decline of Formal Marriage, at 493.

58. Id.

59. Id. at 497.

60. Obergefell v. Hodges, at 15.

61. See Kilbride et al., Plural Marriage, Introduction (the authors discuss the raid at the Yearning for Zion Ranch, near San Angelo, Texas, in 2008).

62. Note that while the United Nations Committee on the Elimination of Discrimination against Women assumes that polygamous marriage contravenes a woman’s right to equality, experts have pushed back, noting that it is important to conduct a contextual examination before drawing a causal conclusion based on unjustified extrapolations. Some polygamy, or likely polygyny, especially in places and countries that have other laws condoning violence against or mistreatment of women, might be harmful, but it is hard to draw any conclusions about egalitarian plural marriage in America from that sample set. See Bailey & Kaufman, Polygamy in the Monogamous World, at 134, referencing Sondra Hale, Gender and Economics: Islam and Polygamy; A Question of Causality, 1 FEMINIST ECON. 68 (1995).

63. Bennion, Polygamy in Primetime, at 260–261, quoted in Den Otter, In Defense, at 103.

64. Avigail Eisenberg, How Should Public Institutions Assess Religious Identity, in POLYGAMY’S RIGHTS AND WRONGS: PERSPECTIVES ON HARM, FAMILY, AND LAW 61 (Gillian Calder & Lori G. Beaman eds., 2013).

65. Id.

66. See Jon Mahoney, Liberalism and the Polygamy Question, 23 SOC. PHIL. TODAY 161–74 (2008).

67. See Kilbride et al., Plural Marriage, at 205 (quoting from an interview with University of Nevada anthropologist William Jankowiak).

68. Jeremy M. Miller, A Critique of the Reynolds Decision, WESTERN ST. UNIV. L. REV. 178, 178–79 (1984).

69. In some ways, polygamy might be akin to a throwback to an earlier time in American history, where extended families lived together, in close proximity and often in the same house, in more of a communal setting. “Those who cling to the idea of the ‘traditional’ as the absolute baseline against which all other change must be measured need only reflect on our own marital and family patterns over the last century or so to see that the idea of the traditional is itself always subject to changing circumstances.” See Kilbride et al., Plural Marriage, at 27.

70. Bailey and Kaufman point out that it could be beneficial to extend benefits to the family unit instead of to needy individuals within the unit (see Polygamy in the Monogamous World).

71. See Smearman, Second Wives’ Club, at 382.

72. John Augustine Ryan, History of Marriage, in 9 CATHOLIC ENCYCLOPEDIA (1910), www.newadvent.org.

73. For example, estimates of how many Mormons were ever involved in polygamy in the late nineteenth century, at the very height of the practice, range from a mere 2 percent to 30 percent. See William Volf, Mormon Polygamy in the Nineteenth Century: The Practice of “The Principle” in Reality (1999), at 41.

74. Gregory C. Pingree, Rhetorical Holy War: Polygamy, Homosexuality, and the Paradox of Community and Autonomy, 14 J. GENDER, SOCIAL POLICY & L. 314, 360 (2006), quoted in Kilbride et al., Plural Marriage, at 5.

75. DeBoer v. Snyder, 772 F.3d 388, 431 (6th Cir. 2014).

76. For a general discussion of the diversity of modern American families, see Natalie Angier, The Changing American Family, N.Y. TIMES, Nov. 26, 2013, www.nytimes.com, cited in Scott & Scott, From Contract to Status.

77. See Gillian Douglas, An Introduction to Family Law (2004).

78. See the transcripts of oral arguments in Obergefell, p. 18, available at https://www.supremecourt.gov.

79. Note that the first ones are already here: http://www.wnd.com/2015/07/montana-clerk-says-no-to-polygamy/.