In the 2015 Supreme Court case that legalized same-sex marriage nationwide, Chief Justice John Roberts noted (in dissent) something odd about the reasoning behind the decision. Although the case specifically concerned same-sex marriage rights, Roberts said much of the reasoning would apply to unions of more than two people. “Although the majority randomly inserts the adjective ‘two’ in various places,” Roberts said, “it is striking how the reasoning of the majority would apply with equal force to the claim of a fundamental right to plural marriage.”
A New York state court is testing this idea and even giving Roberts credit for “predicting” the change. The case is not directly about marriage but about deportation and, by extension, what makes a family.
A Mr. Anderson was married to one man but lived with another in a polyamorous relationship. When Anderson died, the man he was living with sued to stay in Anderson’s apartment. The owner said he couldn’t stay because he had no legal relationship with Anderson.
But the New York court disagreed. Judge Karen May Bacdayan ruled that the relationship did not need to be formalized to merit legal protection. Specifically, Bacdayan wrote that Anderson’s marriage to another man did not mean that her partner had no rights: “The existence of a triad should not automatically dismiss the respondent’s request for protection against evictions.
Several cities in Massachusetts have already legally recognized polyamorous unions. Somerville, Cambridge and Arlington have all written or amended their domestic partnership ordinances to recognize polyamorous relationships. In Somerville, the city extended legal recognition to polyamorous unions because no one could think of a reason not to. Councilman Lance Davis recalls a fellow councilor contacting him about limiting domestic partnerships to two people and asking, “Why is it two? And I said, ‘I don’t have a good answer.’
Returning to the New York case, the judge clearly expands the scope of the eviction case, suggesting that “implied majority animosity” is the only reason some people might think sex should be limited to only two people. In other words, hatred towards people in polyamorous relationships could be the only explanation for this discriminatory law.
Just as marriage law has evolved to include same-sex unions — with the same kind of rationale — the judge argues that extending legal protections to polyamorous unions (or other non-monogamous consensual unions) is a matter of simple fairness in the law.
Does this case signal that the courts are now eyeing monogamy as the next pillar to fall in the deinstitutionalization of marriage?
Before the dam of monogamy breaks and ushers in a new era of legally sanctioned polyamory, we think it would be wise to pause and assess whether families and society would be better off with change. Regardless of what one thinks of same-sex marriage, the shift to polyamory is a breathtaking shift in the public understanding of modern marriage and can be expected to have significant consequences.
A 2018 nationally representative sample study found that 1% of married couples say they are currently in a non-monogamous consensual relationship, with around 4% saying that at some point during their marriage they were involved. in the CNM. Admittedly, 1% to 4% is a small slice of all marriages. But that translates to 600,000 to 2,400,000 married couples in the United States. And this number will increase. In our research, we found that 10% disagree that a married couple should be monogamous, and 41% of millennials are interested.
Social scientists seem infatuated with polyamory. And legal journals are also peppered with arguments as to why polyamorist unions should be constitutionally protected. “If one form (same-sex marriage) deserves dignity, so does the other,” asserts a 2022 note (author anonymous) in the prestigious Harvard Law Review. “Polyamorous people seek intimate bonds, strive to be caring parents, and need to prove that they are not inferior because of who they love.”
Thus, popular media and academic writings push us, culturally and legally, to accept marital polyamory. But for both pragmatic and philosophical reasons, we need to harness the pauses and think more about where we’re going.
As two of us have written before, polyamory presents issues that many people are ill-equipped to handle, including the communication and emotion regulation skills required, and the meaning of consent when there is an imbalance of power and equity. (If you’re putting your career on hold to care for two young children and your partner pops the question of polyamory, what power do you have to say no?) energy that polyamory compels.
Ethics aside, most people lack the skills and resources to make something like this work. For most of us relationship mortals, polyamory is more akin to a character in a Marvel movie than an actual option. Instead of developing our superhero skills, it’s better to think about making monogamy work. Be all for one rather than spread over many; “letting go of everyone else” can be as liberating as it is limiting.
For society at large, what is at risk when judges, legislators and policy makers jump on the popular polyamory bandwagon and seek to diminish the shared norm of marital monogamy? In a real sense, we believe this jeopardizes the very meaning of marriage. Marriage has historically included an expectation (not always followed, of course) of sexual exclusivity. But polyamory undermines that expectation. Polyamory invites spouses to see themselves as perpetually in the dating market.
And while some people might see this as simply increasing the options available (we can imagine a bumper sticker that says, “If you like your monogamy, you can keep it”), the widespread acceptance of polyamory will reduce the option to marry in the traditional sense because the spouses cannot rely on each other to remain sexually faithful in the long (or short) term.
In a world shaped by the acceptance of polyamory, being “married” will not include the normative expectation of sexual exclusivity. The efficient the ability to enter and experience “marriage” in the traditional sense depends on a culture that embraces its value of sexual exclusivity.
In fact, in a world where polyamory is widely accepted, the whole idea of marital commitment might become suspect. What would one commit to by getting married? Treating your (new) spouse as just another sexual/romantic/domestic partner? Cherish and support your spouse until a more appealing option arises and you share your attention?
Proponents of polyamory say issues of time together, resources, and gender will need to be negotiated and renegotiated with open and ongoing communication. But that’s the point – when everything is perpetually up for renegotiation, marriage becomes a perpetually negotiated domestic partnership agreement that persists as long as everyone feels good about it. Opening up marriage to polyamory ultimately means liquidating its meaning beyond recognition.
Yes, people do not meet the high standards of marriage, including sexual fidelity. (Research in this area is hard to do, but the best research finds that about 20% of spouses admit they’ve been unfaithful.) But our failures and the flawed adoption of marriage are recognized as such, and it’s is the point. Even in our almost everything society, saturated with sexuality, we still identify marital infidelity as an evil. And that moral call then recognizes that violations of our marital vows have consequences. Limits of acceptable and unacceptable behavior in marriage are enforced. We risk losing that if we accept polyamory as a moral option.
Now, maybe you disagree with us and think that polyamory isn’t going to become a thing outside of a few progressive enclaves on the East Coast. We hope you are right. It’s tempting to think that what a few polyamorists next door choose to do in their private lives won’t affect your marriage. And even if judges reshape the law to ease the expectation of marital monogamy, people are still free to choose it for themselves. There, we disagree; it is not that simple. What happens in Las Vegas, New York or Massachusetts doesn’t stay there. It seeps into the cultural groundwater we all draw from, especially when the popular media smiles at it and we change our laws and institutions to accommodate it.
We risk – culturally and legally – that monogamy becomes a continually negotiated agreement between partners rather than a universally understood axiom of marriage. When this happens, monogamy becomes harder to ask for and to expect for everyone; it becomes easier to question and devalue. Marital monogamy will decline along with the benefits it offers families and society. It’s a price we don’t want to pay.
Alan J. Hawkins is a professor of family life at Brigham Young University and a member of the Utah Marriage Commission. Daniel Frost is an assistant professor in the School of Family Life at Brigham Young University. Megan R. Johnson is a recent graduate of Brigham Young University’s School of Family Life and is currently a master’s student in the Marriage, Family, and Human Development program at BYU. The opinions expressed here are their own.