Marriage, deconstructed: The next battle for marriage equality could mean the end of marriage

BySteve Friess

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A windowless, basement-level law firm conference room in suburban Kansas City was hardly the most romantic setting for Anne, David, Benjamin, Seth and Donna to affirm their various commitments to one another, but it would have to do. David and Benjamin wanted Anne and Donna to have certain parental rights for 8-year-old twins born to Donna, who call the women mom and ma. Donna wanted Seth, Benjamin and Anne to have equal say in her health decisions if she became incapacitated. They all wanted hospital visitation rights for one another. David, Benjamin and Donna also arranged for all three to appear on the deed of the home they sometimes share. Other permutations of wills, living wills and powers-of-attorney were settled as well.

Such customized patchworks are what pass for forms and gradations of “marriage” for polyamorous Americans. As confusing and unfamiliar as many will find the Byzantine structure of this particular family, efforts to bring legal support to such complex interlocking relationships are also likely to become more commonplace by 2030.

“We know it’s weird to some people, but this is us,” says David, the only one of the quintet willing to talk — and under the condition that only their middle names be used. “There are things we want to protect if we can. But there are things we don’t want to be legally obligated to, too.”

Indeed, marriage itself is facing a devolution. Adults in increasingly unconventional relationships are trying to peel off pieces of what is now an all-or-nothing proposition and mold it to their interests and circumstances.

“We’re moving toward more of that unbundling, deconstructing of marriage down into parts so that people can access them and so we can allow for more creativity in family configurations,” said Diana Adams, an attorney based in New York City and Frankfort, Germany, whose practice focuses on guiding people involved in untraditional relationships. “Historically, you’re either married or you’re not married. This allows for the possibility of acknowledging families as they really exist in the United States. … I hope in 15 years we see a movement toward people being able to create legal relationships with the person or people of their choosing without the government being the arbiter of whether their sexual or romantic relationship is worthy of getting tax and immigration and other benefits.”

The concept of polyamory remains fairly new to most Americans. If the public is familiar with it at all, it is in the context of relationships involving three cohabitating partners or Mormon sects where certain male leaders take multiple wives who live either together or within close proximity.

But the actual spectrum of poly relationships can be far more complicated — which makes finding ways to alter the law exponentially more difficult than the relatively simple task of giving two men or two women the same deal previously afforded to a man-woman couple.

Modern polyamory “is more like interconnecting two-person relationships,” explains Dedecker Winston, 30, who co-hosts the weekly Multiamory podcast with Emily Matlack, 30, and one of Winston’s romantic partners, Jase Lindgren, 35. Matlack has also dated both Lindgren and Winston in the past. Winston splits her time between life with Lindgren in Los Angeles and life in Singapore with another man, Alex, who also has other relationships; Lindgren has another girlfriend, Crystal, who lives with her longtime girlfriend.

“We’re not all in a weird cult-like relationship where we all have orgies together,” Winston says. “My relationship with Alex is completely separate from Jase’s relationship with Crystal. We’re all friends and we can all hang out together and get along with each other and know about each other, but it’s not like we’re all in a group relationship.”

That, they admit, is a lot for most people to comprehend — or for the government to accommodate, given how marriage laws have long been specifically designed to bestow a series of rights and privileges on two-adult units. The notion that any jurisdiction in the United States might fully recognize a triad — some poly folks dislike the portmanteau “throuple,” FYI — by the end of the next decade seems preposterous even to poly advocates.

“I don’t expect marriage among more than two people to be legally recognized in the foreseeable future,” said attorney Jonathan Lane, whose poly-friendly family-law practice is based in Washington D.C. “It’s easier to imagine government benefits being disconnected from marriage rather than having them apply to three people. It may be preferable to get the government out of the business of privileging romantic and sexual relationships entirely.”

Ironically, it is opponents of gay marriage who seem most convinced that legal polygamy is coming — and soon. In his dissent in the 2015 Obergefell v. Hodges case that struck down all state bans on same-sex marriage, Supreme Court Chief Justice John Roberts wrote, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. … If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children?”

Roberts’ terror wasn’t new; the late Justice Antonin Scalia, in his 2003 dissent in Lawrence v. Texas, which struck down state bans on consensual gay sex, sounded a similar alarm. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity ... every single one of these laws is called into question by today’s decision,” Scalia wrote.

So far, lower courts in Utah and Montana have summarily dismissed the idea of legal polygamy as the next logical step, and the Utah legislature actually increased penalties for polygamy in 2017. A spate of similar lawsuits in Mississippi, Texas, Arkansas and Alabama — filed by anti-same-sex-marriage activists seeking, oddly, to somehow undermine Obergefell by creating rights to polygamy or marriage between people and inanimate objects — have gone nowhere.

Those lawsuits are the work of outliers and saboteurs, and they represent an illogical conclusion of what many polyamorous families want, Matlack said.

“People who are willing and interested in multi-partner relationships have already divested themselves of the dream of finding one soulmate and getting married and it being forever,” she says. “There are more people who are vocal about just securing rights for single people. We know a lot of poly people who have actually given up their legal marriages. They’re still together but they want to be less hierarchical and be equal to everyone else involved in the relationship.”

The baby steps that may portend some broader legal acceptance and protection of poly families have occurred in the area of child-rearing. In March 2017, most notably, a New York judge granted custody of a 10-year-old Long Island boy to all of his parents, two women and a man who were once, but are no longer, in a three-way relationship.

The Long Island decision, heralded as a novelty because it involved an explicitly polyamorous situation, actually built on rulings by several state courts that first sought to resolve sticky custody questions that arose in divorces in which the child’s interest was served by ongoing relationships with adults such as former stepparents. In 1995, the Wisconsin State Supreme Court was first to establish the concept of “de facto parenthood” in which the person petitioning for shared custody had lived with the child and assumed key obligations of parenthood with the encouragement of the biological or legal parent or parents. Since then, states as diverse as South Carolina, Maryland and Indiana have embraced versions of the concept. In fact, the Long Island judge in 2017’s poly case cited a 2016 New York State Court of Appeals ruling that granted nonbiological, nonmarried or nonadoptive parents the ability to win custody based on their relationships with the child.

“The law often plays catch-up to how people are living their lives, and the ability to secure parental rights and responsibilities for more than two parents is a good example of that,” Lane says. “Right now, adoptions that result in three legal parents are not an option, but I think that will change, and we’re seeing some small movement in that direction.”

To date, there are no civil rights protections anywhere in the U.S. for polyamorous people, but that could change in 2018. The city council in Berkeley, California, is expected to approve a first-in-the-nation measure to bar employment and housing discrimination based on “relationship structure.” Councilmember Linda Maio, who proposed the regulation in a December memo, defined that as “the number of consenting adults involved in an intimate personal relationship and/or the number of intimate personal relationships in which each consenting adult is simultaneously involved. It also includes an individual’s disposition or desire for a certain relationship structure, regardless of whether the individual is currently in that type of, or in any, relationship.”

The absence of such protections is why Anne, David, Benjamin, Seth and Donna insisted on anonymity for this report. Two of them are public school teachers and one is active-duty military; all believe they could lose their jobs or face intense opprobrium from colleagues and family members should they come out.

“We considered using fake names for the podcast, but we ended up deciding that being some of the first people to be really public about our polyamory was important,” says Lindgren, a television visual effects artist. “Using a pseudonym implies there’s something shameful about this, and we just don’t think there should be.”

Public acceptance in the U.S. of polyamorous lifestyles is quite low, but it’s rising. While only 17% of respondents in a 2017 Gallup poll said polygamy is “morally acceptable,” that’s an all-time high and up substantially from 2003, when 7% said they approved. Some of that, Adams says, is the result of sympathetic depictions of polyamory in popular media, from the long-running TLC reality show Sister Wives and the biopic Professor Marston and the Wonder Women to fictional portrayals in shows like Syfy’s The Magicians, Netflix’s Easy and She’s Gotta Have It, and HBO’s Insecure.

“I feel like I have the privilege to put a relatively stable, grounded, professional face on what this could look like for people,” says Adams, whose family was profiled in a 2009 episode of MTV’s True Life. “It’s important to role-model examples so we can destigmatize this and have more culture and media presentations that are not the scandalous SkinaMax version but instead depicting what these families can really be like and that these can be people who can be really stable with children.”

Such exposure is increasing the number of people willing to consider polyamory “as people become aware that these are options and there are people with similar inclinations and they’re finding each other and building communities,” Lane says. “I definitely expect to see substantial growth in public acceptance and understanding. I think by 2030, I expect that to be a huge change. A lot of people are just hearing of this for the first time around now.”

Still, opposition to broader acceptance of polyamory comes not just from religious conservatives but even from some leading same-sex marriage advocates. Days after the Obergefell ruling, the prominent same-sex marriage advocate and writer Jonathan Rauch penned a piece for Politico headlined, “No, Polygamy Isn’t the Next Gay Marriage” in which he declared that “gay marriage and polygamy are opposites, not equivalents.”

“Here’s the problem with it: when a high-status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real-world pattern), a lower-status man gets no wife. If the high-status man takes three wives, two lower-status men get no wives,” wrote Rauch, a senior fellow at the Brookings Institution. “This competitive, zero-sum dynamic sets off a competition among high-status men to hoard marriage opportunities, which leaves lower-status men out in the cold. Those men, denied access to life’s most stabilizing and civilizing institution, are unfairly disadvantaged and often turn to behaviors like crime and violence. The situation is not good for women, either, because it places them in competition with other wives and can reduce them all to satellites of the man.”

Rauch’s version of polyamory, however, is just one specific configuration — men taking multiple wives — and fails to reflect the diversity and complexity of a younger generation of polyamorous people, Dedecker says. The “old guard” of polyamory, she says, “came out of the swinging world. In that world, there’s a central couple, and the most important thing is to preserve that primary couple. … People of our generation are approaching things a little bit more egalitarian and less focused on needing to create something that still kind of looks like monogamy.”

Poly progress is expected to be remain slow in the coming decade, but Adams believes help in opening up the rights of marriage to more people could come from such unexpected quarters as aging baby boomers clamoring for “some status beyond marriage” for late-in-life relationships. There is precedent for that: When Nevada approved civil unions in 2009, some conservative Republican lawmakers voted for it not to empower same-sex couples but because their districts included many widowed or divorced senior citizens wanting some legal protections for their companions.

For now, the best poly folks can do, as Anna, David, Benjamin, Seth and Donna have, is enlist an attorney to draw up some contracts. Yet Adams and Lane both warn their clients — as attorneys used to warn same-sex couples in the pre-Obergefell era — that it’s unclear whether those documents will hold up if challenged in court.

“The process of sitting down with a trained mediator or collaborative lawyer and agreeing to what happens in difficult scenarios, then drafting it onto a piece of paper and signing it, makes it less likely that they’ll end up in a dispute that will land them in court down the line,” Adams says. “And if they do go to court, we hope they have a strong enough document that they may be able to push forward state law.”