L'amour for Four: Polygyny, Polyamory, and the State's Compelling Economic Interest in Normative Monogamy

• Citation: Vol. 64 No. 6
• Publication year: 2015

L'Amour for Four: Polygyny, Polyamory, and the State's Compelling Economic Interest in Normative Monogamy

Jonathan A. Porter

L'AMOUR FOR FOUR: POLYGYNY, POLYAMORY, AND THE STATE'S COMPELLING ECONOMIC INTEREST IN NORMATIVE MONOGAMY

ABSTRACT

Some Americans are changing the way they pair up, but others aren't satisfied with pairs. In the last few years, while voters, legislatures, and judiciaries have expanded marriage in favor of same-sex couples, some are hoping for expansion in a different dimension. These Americans, instead of concerning themselves with gender restrictions, want to remove numerical restrictions on marriage currently imposed by states. These people call themselves polyamorists, and they are seeking rights for their multiple-partner relationships. Of course, polygamy is nothing new for the human species. Some scientists believe that polygamy is actually the most natural human relationship, and history is littered with a variety of approaches to polygamous relations. Only in recent centuries has society's preference for monogamy developed, yet that preference has proven robust, as most Western governments vehemently support monogamy as the only marital option.

This Comment explores polygyny and polyamory in the United States and walks through the traditional legal, political, and sociological arguments for and against polygamy. While most polygamy throughout the world stems from cultural or religious bases, this Comment primarily focuses on freely entered-into polygamy. The traditional human rights arguments against cultural- and religious-based polygamy do not necessarily apply to coercion-free polyamory. While some claim the absence of coercion leaves the state without a compelling reason to ban polygamous marriage, this Comment disagrees and finds several compelling reasons for states to favor monogamy.

Alarmingly, in the face of challenges by would-be polygamous couples, states are unable to articulate exactly what interest they have in normative monogamy. Attorneys defending states' polygamy laws usually rely on historical or administrative reasons, essentially claiming that monogamy should hold because that's what we have always done, and it would be too hard to change. These typical arguments sell monogamy short. This Comment proposes other, more dynamic reasons that states should continue to support normative monogamy, reasons that have thus far been ignored by the legal

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world. Normative monogamy plays a far greater role in the development of Western society than states have argued. In fact, social science research shows that normative monogamy makes members of society more productive by encouraging long-term investments instead of short-term, mating-focused expenditures of resources. This natural shift in priorities among the monogamous has led to radical advancement in societies that practice normative monogamy. Monogamy's contribution to society has been largely ignored by the legal world and unargued before courts deciding the merits of laws proscribing polygamy; yet normative monogamy's role in the advancement of society is the single most compelling interest that states have. This Comment advances that previously ignored interest.

Introduction............................................................................................ 2095

i. polyamory delineated from polygyny .................................. 2099
II. Religious-Based Polygyny in the United States...................2103

A. Historical Context: Mormon Polygyny.................................... 2104
B. The State's Compelling Human Rights Interests ..................... 2108

III. The State's Compelling Interest in Banning Polyamory .... 2113

A. The Weak Interest: Existence of Laws Premised upon Monogamy ............................................................................... 2115
B. The Unknown Interest: Polygamy's Link to Crime ................. 2115
C. The Strong Interest: Nurturing Intra-Household Relationships ........................................................................... 2117
D. The Strongest Interest: Normative Monogamy as an Economic Stimulant ................................................................. 2120

IV. Standard and Test for State Bans of Polyamory................2123

A. Why Reynolds Should Not Control Polyamory ....................... 2124
B. Potential Polyamory Challenges to Polygamy Laws ............... 2126

1. Fundamental Right............................................................ 2127
2. Suspect Classifications ...................................................... 2130
3. Animus............................................................................... 2132
4. Rational Basis Review ....................................................... 2132

C. Cohabitation Laws: Brown v. Buhman ................................... 2137

Conclusion................................................................................................2138

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Introduction

Terisa Greenan and her boyfriend, Matt, are enjoying a rare day of Seattle sun, sharing a beet carpaccio on the patio of a local restaurant. Matt holds Terisa's hand, as his 6-year-old son squeezes in between the couple to give Terisa a kiss. His mother, Vera, looks over and smiles; she's there with her boyfriend, Larry. Suddenly it starts to rain, and the group must move inside. In the process, they rearrange themselves: Matt's hand touches Vera's leg. Terisa gives Larry a kiss. The child, seemingly unconcerned, puts his arms around his mother and digs into his meal.
Terisa and Matt and Vera and Larry—along with Scott, who's also at this dinner—are not swingers, per se; they aren't pursuing casual sex. Nor are they polygamists of the sort portrayed on HBO's Big Love; they aren't religious, and they don't have multiple wives. But they do believe in "ethical nonmonogamy," or engaging in loving, intimate relationships with more than one person—based upon the knowledge and consent of everyone involved. They are polyamorous, to use the term of art applied to multiple-par₁tner families like theirs, and they wouldn't want to live any other way.¹

Terisa, Matt, Vera, Larry, and Scott are hardly alone in eschewing monogamy for polygamy. While polygamy is virtually nonexistent in modern mainstream Western culture, the majority of cultures on earth today still practice polygamy.² Even in the United States, polygamy may be more common than one might think. A recent study from the University of Michigan found that approximately four percent of the adult population participates in consensually nonmonogamous relationships.³ This means that there may be 10 to 12 million polyamorists⁴ in the United States,⁵ which is enough of a

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population to lead University of Michigan researchers to conclude that polyamorists' "sheer numerical size . . . suggests the potential to start a social movement for civil rights."⁶

In actuality, the push for polygamist rights in the United States has been underway for more than a century. In 1879, the United States Supreme Court unanimously affirmed the criminal conviction of a practicing polygamist in Reynolds v. United States, declaring polygamy to be "odious."⁷ In Reynolds, Chief Justice Morrison Waite described the West's long history of criminalizing polygamy, dating back to the statute of James I in the Eleventh Century, declaring, "From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society."⁸ Since that time, federal courts have consistently rejected constitutional challenges to polygamy laws.⁹

However, the nineteenth-century Supreme Court cases upholding laws banning polygamy also would have upheld now-arcane laws restricting marriage on divorce and gender bases. For example, in the 1885 case of Murphy v. Ramsey, the Supreme Court upheld the denial of voting privileges to polygamists under the Edmunds Act.¹⁰ But in doing so, the Court uses language indicating a much narrower view of marriage:

[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth . . . than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and

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one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.¹¹

Despite the Murphy Court's sanctioning of legislation requiring "union[s] for life," we now conceive of divorce as being something akin to a fundamental right.¹² And, despite Murphy's statement that marriage is between "one man and one woman,"¹³ nearly all legal prognosticators agree that the Supreme Court will soon declare same-sex marriage to be a right.¹⁴ Are Murphy's statements condemning polygamy bound to suffer the same fate? This Comment attempts to answer that question by exploring polygamy and polygamy laws in the United States.

An interesting, yet often overlooked, group of American polygamists consists of those who seek relationships not because of religious or cultural reasons but because of a personal desire to have a nonmonogamous relationship. The bulk of American polygamy law is intertwined with the First Amendment's Establishment Clause rationale and polygamy's base presence in several faiths. In Reynolds and Murphy, for example, the polygamy law challengers were Mormons.¹⁵ In fact, many nineteenth-century polygamy laws, including the Edmunds Act, were targeted at members of the Mormon Church.¹⁶ Today, the usual polygamy tale involves not only Mormons but also Islamic and African immigrants who carried their polygamous marriages with them.¹⁷ Thus, most laypersons (and most legal scholars, according to one

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professor)¹⁸...