Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, April 2, 2021

How Polyamorists and Polygamists Are Challenging Family Norms

From The New Yorker:

As many as sixty thousand people in the United States practice polygamy, including Hmong Americans, Muslims of various ethnicities, and members of the Pan-African Ausar Auset Society. But polygamists face innumerable legal obstacles, affecting such matters as inheritance, hospital visits, and parentage rights. If wives apply for benefits as single parents, they are lying, and may be committing welfare fraud; but if they file joint tax returns they are breaking the law. 

In 2015, when the Supreme Court’s decision in Obergefell v. Hodges established same-sex marriage as a constitutional right, Chief Justice John Roberts wrote a dissent arguing that, if a system denying marriage to gay and lesbian couples represented an assault on their constitutional rights, existing marriage restrictions must similarly “disrespect and subordinate people who find fulfillment in polyamorous relationships.” Roberts continued, “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” 

In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents.

The campaigns of both polygamists and polyamorists to have their unions recognized point to the larger questions that swarm around marriage battles: what are the government’s interests in marriage and family, and why does a bureaucratic system sustain such a relentless focus on who has sexual relationships with whom? Surveys in the past decade have consistently found that four to five per cent of American adults—more than ten million people—already practice some form of consensual nonmonogamy, and the true number, given people’s reticence about stigmatized behaviors, is almost certainly higher.

Read more here.

https://lawprofessors.typepad.com/family_law/2021/04/how-polyamorists-and-polygamists-are-challenging-family-norms.html

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