Legal Recognition of Plural Unions: Is A Nonmarital Relationship Status the Answer to the Dilemma?

• DOI: http://doi.org/10.1111/fcre.12461
• Date: 01 January 2020
• Author: Sally F. Goldfarb
• Published date: 01 January 2020

LEGAL RECOGNITION OF PLURAL UNIONS: IS A NONMARITAL

RELATIONSHIP STATUS THE ANSWER TO THE DILEMMA?

Sally F. Goldfarb

†

Intimate relationships involving three or more adults are increasingly visible in American society. Multiparty relationships,

which are also known as plural unions, mainly take two different forms: systemic polygyny and polyamory. Family law cur-

rently denies recognition to all plural unions. Granting legal recognition to multiparty relationships would advance the goal

of family pluralism and expand access to valuable legal protections. However, the possibility of granting official recognition

to plural unions must be approached with caution, because systemic polygyny poses a serious risk of harm to women and

children arising from the imposition of oppressive gender roles. A possible solution to this dilemma lies in offering a formal

nonmarital status (such as civil union, domestic partnership, reciprocal beneficiary, or designated beneficiary) to participants

in plural unions. As a result of their differing attitudes toward marriage, polyamorists would be likely to embrace a non-

marital relationship status, while participants in systemic polygyny would most likely reject it. Thus, providing a nonmarital

status for plural unions could allow polyamorists to obtain the benefits of relationship recognition, without placing the gov-

ernment’sseal ofapproval on the oppressive aspects of systemic polygyny.

Key Points for the Family Court Community:

Hundreds of thousands of Americans participate in intimate relationships involving three or more adults. These rela-

tionships have become increasingly visible in recent years.

The two most prevalent types of multiparty relationships (also known as plural unions) are systemic polygyny and

polyamory. These two types of plural unions have very different characteristics.

Family law currently denies legal recognition to plural unions. Permitting participants in plural unions to enter a for-

mal nonmarital relationship status would have advantages over permitting them to marry.

Nonmarital relationship statuses are currently available in some American jurisdictions. Four states offercivil unions;

dozens of localities and a handful of states offer domestic partnerships; one state (Hawaii) offers the reciprocal bene-

ficiary status, and one state (Colorado) offers the designated beneficiary status. A few jurisdictions offer more than

one of these statuses.

Keywords: Civil Union; Domestic Partnership; Family Pluralism; Marriage; Nonmarital Relationships; Plural Unions;

Polyamory; Polygamy.

I. INTRODUCTION

The law’s treatment of intimate relationships among three or more adults has emerged as one of the

most controversial topics in the family law field.

1

Discussions about legal recognition of plural unions

have largely focused on the question of whether polygamous marriage should be permitted. Framing the

question in this way suggests that there are only two possible answers: Either polygamous marriage will

be allowed, or plural unions will continue to be denied legal recognition. A third option, which has

received less attention, is to extend a formal relationship status other than marriage—such as civil union,

domestic partnership, reciprocal beneficiary, or designated beneficiary—to people in plural unions. As

Corresponding: sfg@law.camden.edu

†

Copyright 2019 by Sally F. Goldfarb. Professor of Law, Rutgers Law School.

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 157–173

© 2020 Association of Family and Conciliation Courts

this article will show, granting recognition to plural unions through a nonmarital relationship status has

the potential to expand access to valuable legal protections and advance the goals of family diversity

and equality, without legitimizing the type of multiparty relationship that poses the greatest risk of harm

to women and children.

Part II of this article places the issue in context by describing the role of polygamy in the same-

sex marriage debate. Part II then identifies and contrasts the two most visible types of plural unions

in the United States today: systemic polygyny and polyamory.

2

Part III tackles the question of

whether plural unions should be legally recognized, with particular emphasis on the dangers that

systemic polygyny presents for women and children. After providing an overview of nonmarital

relationship statuses, Part IV explores the possibility of offering a nonmarital relationship status for

plural unions. In addition to enhancing pluralism, this approach would serve as a self-sorting mech-

anism. As a result of their differing attitudes toward marriage, polyamorists would be predisposed

to embrace a nonmarital status, while participants in systemic polygyny would most likely reject it.

II. PLACING THE CONTROVERSY IN CONTEXT

The current controversy over the legal response to plural unions has arisen in the context of

recent social and legal changes, particularly the movement to legalize same-sex marriage and the

increasing visibility of multiparty relationships.

A. THE SAME-SEX MARRIAGE MOVEMENT AND ITS IMPLICATIONS FOR POLYGAMY

In the debate over same-sex marriage, two groups adduced an analogy between same-sex marriage

and polygamy: opponents of same-sex marriage and supporters of polygamy. Both of these groups

promoted the slippery slope argument that legalization of same-sex marriage would lead inexorably to

legal recognition of polygamy.

3

Of course, they completely disagreed about whether this outcome was

desirable. While some polygamy supporters attempted to harness the momentum of the same-sex mar-

riage movement to advance social and legal acceptance of plural marriage, opponents of same-sex

marriage pointed to legalization of polygamy as part of a parade of horribles to be avoided at all

costs.

4

Members of the judiciary were among those who invoked polygamy, along with incest and

other stigmatized sexual practices, in order to discredit demands for marriage equality.

5

For example,

during oral argument in Obergefell v. Hodges, Justice Alito repeatedly asked whether there is any

“logic”that would permit denying a marriage license to “two men and two women”or to “unmarried

siblings”if the Court were to rule in favor of same-sex couples’right to marry.

6

When Obergefell was decided, the polygamy analogy played a prominent role in Chief Justice

Roberts’s dissenting opinion, which was joined by Justices Scalia and Thomas. The Chief Justice

wrote that “much of the majority’s reasoning would apply with equal force to the claim of a funda-

mental right to plural marriage.”

7

Indeed, he asserted that

a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person

union to plural unions, which have deep roots in some cultures around the world. If the majority is will-

ing to take the big leap, it is hard to see how it can say no to the shorter one.

8

Meanwhile, most proponents of same-sex marriage firmly rejected the analogy to polygamy. They

attempted to refute the “slippery slope”and “parade of horribles”arguments by distancing themselves

from polygamy, not by defending it.

9

With few exceptions,

10

the prevailing stance among same-sex

marriage supporters was that a marriage of two men or two women is so different from a marriage of

three or more people that allowing the former would not lead to allowing the latter.

11

Several years after Obergefell recognized a constitutional right to same-sex marriage, polyga-

mous marriage remains illegal in every state.

12

Nevertheless, the analogy between same-sex

158 FAMILY COURT REVIEW