Until death do us part?

At the end of my second year of law school, I wrote a paper entitled "Until Death Do Us Part: Is America Ready for State Sanction Group Marriage?" What's the answer? You got it. A resounding no!

Regardless, My teacher totally dug the topic and I won the "you got the best grade in this class" award for it. Of course, I may also have gotten that award because on the first day of class I announced that I lead a boring life and if anyone wanted to steal my identity, he or she could have it. Of course, karma gave me a swift kick in the ass for making that comment; more than a year later someone took over $700 from my checking account via identity theft.

State sanctioned group marriage. Would I ever be in a group relationship? I've tried it before, and it doesn't seem to work for me. Of course, I've tried hetersexual monogamous relationships, and those don't really seem to work for me either. So the conclusion? I don't know what works for me or what I may or may not try in the future. For now I'm more or less enjoying the single life. However, as a legal matter, I think people should be able to marry whomever they please. The argument that gay marriage would allow plural marriage is ridiculous. I don't see the problem. Plural marriage? Fine. Let everyone marry each other. I don't buy the proverbial slippery slope argument. I don't think men will bein a great rush to start marrying goats if we allow it. (Though for more on man-animal love, see http://www.spectator.co.nz/POV/barkers.htm, or just enter "Lady Buble" into Google.)

For the Introduction to a legal analysis on this issue, read further. I've only posted the introduction because the paper is so long. But if anyone would like to read more, let me know, and I will post the rest in serial form. Just like Steven King does.

INTRODUCTION

On April 3, 2005, a group of psychologists in Manchester, England learned a new word: polyamory.[1] They listened as Dr. Meg Barker of the South Bank University in London told the British Psychological Society annual conference that up to 2,000 British men and women are openly polyamorous.[2]

But what is polyamory? Barker described is as “the belief that it’s acceptable or even ideal to have more than one loving or sexual partner,” and added that the emphasis is on “the recognition of multiple important relationships – it’s not about casual sex.”[3] Barker then went on to explain that because polyamory is a developing alternative lifestyle, “polys” – practitioners of polyamory – need terms beyond what exist in the current vernacular to describe their emotions and actions.[4]

Almost immediately, the British press pounced on the opportunity to deride polyamory and its vocabulary.[5] Yet despite media criticism, there is no arguing that polyamory is an alternative movement not only prevalent in the U.K., but quickly growing in the U.S. as well. The biggest following exists on the West Coast, with other sizeable poly populations in larger cities like Boston, Chicago and New York.[6] As the polyamory movement picks up momentum, awareness is beginning to spread. Web sites dedicated to the polyamorous lifestyle are popping up on the Internet.[7] Major newspapers are dedicating inches of print to discussing polys and their struggle for acceptance.[8] Even lawyers are adding themselves to listings directed at polyamorous individuals.[9]

As the polyamory movement grows larger, so does the demand that polyamorous relationships be recognized within the mainstream culture.[10] Some compare polyamorists’ social and political station to that of gays and lesbians.[11] And like the gay community, the polyamorist community is crying out for acceptance and recognition – through marriage – of its lifestyle and ideals. [12]

This essay will view polyamory side by side with monogamy (both heterosexual and homosexual), and evaluate what legitimate state interest the government may have in regulating group marriage. Part I will define polyamory and discuss social concerns that are inherent in the movement. Such concerns include the jealousy that is intrinsic in multi-partner relationships, possible coercion that may result from sexual jealousy, and raising children in a polyamorous family.

Part II will evaluate marriage as a fundamental right, and how restrictions on marriage are analyzed by the courts. Because polyamory is a fairly new social movement, and as such, there is no case law directly dealing with polyamorous individuals, this section will take a brief look at the criminalization of polygamy and how polygamy is handled in light of the Free Exercise Clause of the First Amendment.

Because opponents to gay marriage have argued that allowing gay marriage opens the door to allowing plural marriage, Part III will take a look at some of the recent decisions in the context of gay marriage, and will extrapolate the reasoning of these cases to plural marriage.

Additionally, several arguments have been promulgated in opposition to sanctioning plural marriage. This essay will look at a few of these. Thus, Part IV will discuss whether the state has an interest in the expressive content of marriage – in monogamous heterosexual relationships, monogamous homosexual relationships, and in polyamorous relationships. Part V will briefly discuss the state’s interests in promoting the welfare of children, and will look to see whether children in polyamorous families are at a greater risk of harm than children in monogamous families.

Finally, Part VI will broach the subject of abolishing marriage as a legal institution, and leaving marriage to individual social institutions, particularly religious entities.

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[1] See Celia Hall, Free Love is Fine – But Watch Out For The Wibbles, THE DEAILY TELEGRAPH, April 4, 2005; Abigail Wild, The Pitfalls Of Free Love Rebranded, THE HERALD, April 6, 2005; Adam Zwar, Try Polyamory And Get That Frubbly Feeling, SUNDAY HERALD SUN, April 24, 2005.

[2] Hall, supra note 1.

[3] Id.

[4] Hall, supra note 1 (“Feeling ‘frubbly’ is described as the opposite to feeling jealous and is used to describe feelings of friendship towards a lover and their other partners, who are called ‘metamours’… A ‘wibble’ is a jealous feeling but ‘not a massive sexual threat,’ Dr. Barker said. ‘The question is, when you are not having a standard relationship, what do you do for words? There are no words for what we do.’”).

[5] See Rebecca Front, Comment & Analysis: This Week, THE GUARDIAN, April 9, 2005 (“For example, the word ‘metamor’ has been coined to denote one’s partner’s partner. Looking at the etymology of ‘metamor,’ I suppose we must assume that one partner is Greek and the other Latin. Either that, or the polyamorists have no time for grammar, as they’re too busy conjugating.”); Jemima Front, Growing Old Can Be A Joy, SUNDAY TELEGRAPH, April 10, 2005 (“Many a woman has put a brave face on an open marriage, or gamely gone through with a spot of swinging, rather than acknowledge her own jealousy. The polys might call that a wibble: I would call it a big pretence.”); Wild, supra note 1 (“You can only imagine polyamory to be rife with wibbling – oh heck, let’s call it jealousy – being a system that increases the chances of being hurt in that way, and reduces the right to complain about it and resolve it. Being everyone’s tertiary partner, and nobody’s number one, must be wibble hell.”); Zwar, supra, note 1 (“Yes, it’s all fun and games until a bit of rubber glove turns a wibble into a wibble-wobble.”).

[6] Douglas Brown, Polyamorists Don’t Just Have Sex With People Other Than Their Spouses. They Fall in Love With Them. Challenging Monogamy, THE DENVER POST, Jan 24, 2005.

[7] A Google search for “polyamory” returned more than 220,000 hits. See, e.g., www.bee.net/cardigan/PAARC; www.polyamory.com; www.polyamory.org; www.polyamorysociety.org; www.xeromag.com/fvpoly.html.

[8] See Brown, supra note 6; Alison Neumer, The Polyamorous; Three’s Company: Join The Fun, CHIVAGO TRIBUNE, April 8, 2005 Reid Epstein, Whole Lotta Love: ‘Polyamorists’ Go Beyond Monogamy, MILWAUKEE JOURNAL SENTINEL, Sept 13, 2004.

[9] See Stephanie Francis Cahill, Web Site Has The Lowdown On Finding Lawyer, CHICAGO DAILY LAW BULLETIN, Nov 20, 2000.

[10] See, e.g., Epstein, supra, note 8.

[11] See Epstein, supra note 8 (“Sitting in the shadow of an oak tree, John wise described how the gay rights movement is laying the groundwork for polyamorists to acquire legal status for their three-, four- and more-way relationships.”).

[12] Id. See also Ryan Nearing, LOVING MORE: THE POLYFIDELITY PRIMER 22 (1992) [hereinafter THE POLYFIDELITY PRIMER] (in a 1995 survey of 200 readers of Loving More, a national polyamory magazine, 68 percent favored state approval or group marriage).