Among those who favor marriage discrimination, one of the arguments commonly trotted out is that if we allow gay marriage, then there is no rationale for for opposing polygamy. This argument is almost too silly to be taken seriously, but one of the key differences it fails to acknowledge is that gay marriage is structurally and functionally identical to “straight marriage,” whereas the introduction of polygamous marriage would require the extensive adoption of legal structures currently unknown in the United States.
Now that coverture has been abolished, marriage is a gender-blind contractual arrangement, with one glaring exception: its entry requirements. Legally, the gender of any particular spouse has no relevance as to how marriage laws are administered — marriage is nothing more (legally speaking) than a specialized contract between two parties which confers on them a laundry list of legal privileges and obligations, as well as recognition as a specialized class under certain statutes, such as, for instance, the tax code or debt collection law.
Because of marriage’s gender neutrality, the recognition of gay marriage requires no change in the law, other than removing gender discrimination in regards to who has access to marriage contracts. Polygamy, on the other hand, is a helluva lot harder to implement. Unlike gay marriage, allowing polygamous marriage would require the creation of an entirely new form of marriage contract — or rather, it would require the creation of entirely new forms of marriage contracts.
While I consider the legalization of gay marriage to be of an extremely greater social, moral, and legal importance than is the question of polygamy, I do think polygamy should be permitted. Or, to put it in a more conservative manner: I am in favor of the deregulation of marriage. Although I am fairly neutral in regards to the idea of polygamy in general, I am a strong proponent of allowing people to structure their lives in whatever manner they believe best serves their own pursuit of life, liberty, happiness, etc. And for some people, that’s going to include non-traditional marriage forms.
Although politically speaking I think it is exceedingly unlikely that polygamy will ever be legalized in the U.S., other states, including Canada, are in fact grappling with these questions now. But what if we did want to make polygamy legal in the U.S.? What would it look like? What legal structures would be required to implement it? This post is intended as a sketch of what would be needed, in terms of legal structures, to create the institution of polygamous marriage:
To start off, there are two distinct sets of legal complications that the legalization of polygamous marriage would create: internal problems and external problems.
Internal problems are those issues relating to the entry and exit from marriage contracts, and the duties and rights of parties during the course of the marriage. For instance, the questions of whether a party is allowed to enter into any given additional marriage contract, how property is to be distributed upon death or divorce, or which spouse has the power to make medical decisions on behalf of a patient are all issues that current marriage laws would not be able to address in the context of polygamous marriage.
External problems, in contrast, are the problems resulting from the interaction of government regulations and/or non-marriage contracts with polygamous marital unions. These are the legal confusions that would arise from attempting to apply our current laws — which recognize only one standardized form of marriage — to a world in which multi-party marriages are permissible. For instance, how would health insurance plans that cover spouses apply? Which spouse gets social security benefits upon the death of a shared partner? Would spousal immigration regulations apply in the case of a polygamous marriage? If a woman with two husbands dies and leaves no will, who does her estate go to?
For purposes of this post, I’m sticking to the question of the internal legal issues posed by polygamy — i.e., what the polygamous marriage contract would look like. The external problems are a lot more complicated, and a lot more varied, than can be addressed in a single post. However, I am confident that current U.S. law could be adapted to handle plural marriages. Our laws already discriminate between marriages based upon their degree of seriousness; for instance, social security regulations give special recognition to marriages that lasted ten years or more, as opposed to those shorter than ten years. There is no reason to believe that the law could not be adapted to discriminate between marriages based on factors of quantity as well as quality, although the question of which sorts of polygamous unions warrant recognition would be a delicate policy question.
Additional note: For this discussion, I also leave out completely the issue of children and child custody laws. Although that would certainly be an important legal issue to be addressed with respect to polygamous marriage, it is not a question unique to it. I also favor a complete overhaul of the laws of parenthood and guardianship in the United States. With the advent of reproductive technology, it is simply no longer the case that a child will always have a clearly definable biological mother and father. Given the variety of combinations that can go into the event of child production today, acknowledging and allowing for more complicated parenting arrangements is a vital change that needs to be made to family law.
Types of Polygamous Marriage Contracts
(1) Group marriage contracts: I’ll start with the easiest form of polygamous marriage contract: the group-style marriage of three or more parties, in which all parties are equal members of the union. I call this arrangement the “easiest” because we already have a well-developed body of law to draw from in administering this form of marriage: business association law. In a group-style marriage, the marriage would be, in effect, an incorporated entity. As with corporate law, group marriages would possess articles of incorporation specifying the terms of the arrangement and, most importantly, would have provisions regarding if and how new members are to be admitted into the marriage, and how property is to be distributed in the event of dissolution by a member.
Given that my knowledge of group marriages comes pretty much exclusively from science fiction (Heinlein, Haldeman, and Le Guin, among many others, all have fiction featuring plural marriage structures. Even Caprica briefly features them), I’m using those general family structures as my example here. For instance, Heinlein’s line marriage would be a candidate for adopting a group-marriage style marriage contract. Line marriage is depicted in Heinlein’s novels as a “[p]olygamous custom evolved in Luna City. Spouses are opted in at fairly regular intervals (usually alternating sexes), so that the marriage/family never comes to an end. The arrangement is intended more to provide emotional and economic security for the children than sexual partners for the adults. Younger spouses are almost more ‘adopted’ than married. Children marry outside the line marriage.” One of the benefits of line marriage touted by its practitioners is that the marriage is, in effect, immortal. No one can ever be widowed, and there are always plenty of hands around to help with familial duties. Children of the union are guaranteed to have care and supervision provided by multiple adults, and with so many spouses, there can be a very specialized division of labor among spouses.
In effect, Heinlein-style line marriage constitutes a corporate entity that is dedicated to establishing a stable and nurturing family life. (Well, if you take Heinlein’s word for it, anyway.) Because a series of interwoven two-party marriages would not provide the sort of protections or structure the parties need, the marriage as a whole would need to be made into its own legal entity. At formation, the first-generation members of the marriage would draft up articles of incorporation specifying the rules by which new spouses are opted in — by majority vote? Unanimous consent? — and what limitations there are on potential entrants — is there a limit on how many spouses can join in any five year period? Restrictions on the permissible gender ratios? As for dissolution of members — i.e., divorce — the specific arrangements would likely be complex, but in general, you would need to have provisions ahead of time which specify whether property of the spouses would become communal property owned by the marriage entity, or if members would have independent finances, or if it is to be a blend of both.
Because the incorporated marriage entity could itself possess or inherit property, enter into (non-marriage) contracts, accumulate debt, or do most anything else that a juridical person can do, a group marriage would permit a marriage of three or more people to operate in a manner more or less analogous to how a married couple would operate, only with the decision-making power carried out through a corporatesque structure. Although obviously in the real world there would be many more complexities to address, in general, corporate law provides a pretty good road map for how group-style polygamous marriages would operate.
(2) Multi-marriage contracts: Multi-marriage contracts would be almost identical to the marriage contract currently available in the US. The primary difference — albeit a rather important one — is that they would lack the exclusivity clause that is implied into every marriage contract today. In other words, in multi-marriage contracts, a marriage only contains two parties, but parties would be permitted to enter into one or more of such contracts.
This sort of marriage is potentially far more complex than is group-style marriage. In a group style marriage, all parties have a relationship with all other parties, so there is a unity of interest that is not present in the case of a spouse with two distinct marital contracts. The ability of a spouse to suffer injury by their spouse’s diversion of resources is also greater, and harder to detect.
In order to make such marriages administrable, a “first in time rule” would likely need to be implemented — i.e., the terms of the very first marriage contract a party enters into controls the terms and conditions under which any additional marriage contracts could be entered into. Therefore, if you enter into an exclusive marriage contract, you get a “traditional” marriage contract, with all the associated legal obligations and benefits that exist today. But if you enter into non-exclusive marriage contract, then the parties are permitted, under certain conditions, to later enter into additional marriage contracts. Each later marriage contract must comply with the terms of the first, and any marriages that were subsequent to a still-existing prior marriage of either party would have to comply with any and all prior marriage contracts, and so on down the line.
Multi-marriage contracts would, necessarily, contain an authorization clause, specifying the terms and conditions under which a party may enter one or more additional marriages. Although theoretically you could also have unrestricted multi-marriage contracts, where a party is free to marry anyone they want whenever they want, as a policy and legislative matter this sort of “marriage contract” would not be permitted. Under traditional principles of contract law, no contract can exist unless there has been an exchange of consideration. A marriage contract that does not place any limitations on a party’s ability to contract with others or to distribute personal property in whatever manner the individual might wish is merely an illusory contract, and not a marriage at all.
The authorization clause of a marriage would be decided by the parties involved prior to entering the union — and in many respects, it would be similar to a prenup. Hypothetical restrictions could include language such as “This marriage shall be the only marriage into which a spouse will enter, unless prior written authorization is given by the other spouse,” “A spouse cannot enter into any additional marriage contracts that would grant property rights to any subsequent spouse over any of this union’s marital property,” or “Neither spouse may ever marry more than one additional spouse.” Restrictions could also be placed on whether or not additional spouses are permitted to live in the same household (or if there is a requirement that they do so), and there could also be stipulations about which spouse has priority in regards to inheritance or power of attorney.
For public policy reasons, I’d also elect to include a requirement that all marriage contracts are symmetrical in their permissions, i.e., situations in which one partner is permitted to take on additional spouses while the other is not would be prohibited. Any restrictions (or lack there of) on the ability of a partner to take another spouse would have to apply equally to both parties. I would probably also make the “veto power” mandatory rather than optional — i.e., a current spouse always has the power to veto any new marriage their spouse might wish to enter into.
(3) Hybrid marriage contracts: Hybrid marriage would involve marriages between or among members of group marriages and members of multi-marriage contracts. Although not specifically its own type of marriage contract, hybrid marriage is a situation that both group marriages and parties to multi-marriage contracts would have to contemplate and make provisions for in their contracts. For instance, is an individual member of a group marriage permitted to enter into a multi-marriage contract with an individual outside of the group? Or can one spouse in a two-party multi-marriage later marry into a group marriage? Could both spouses in a multi-marriage contract marry into the same group marriage? For that matter, could a two-party multi-marriage be converted later into a group marriage?
If nothing else, it is clear that, should polygamous marriage ever be legalized, family law professors have an endless variety of convoluted hypotheticals to choose from.
Conclusion: If polygamous marriage were ever authorized, it would have to be accompanied by a serious and detailed legislative effort, codifying what the polygamous marriage contract would look like. (Perhaps those opposed to “judicial activism” can find comfort in this; no judge would ever legalize polygamous marriage on her own, because the legal changes it would require are just too damned complicated to be dictated from the bench.)
-Susan
