The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-sex Marriage

• Publication year: 2015

The Evolution of Plural Parentage: Applying Vulnerability Theory to Polygamy and Same-Sex Marriage

Stu Marvel

THE EVOLUTION OF PLURAL PARENTAGE: APPLYING VULNERABILITY THEORY TO POLYGAMY AND SAME-SEX MARRIAGE

Stu Marvel^*

ABSTRACT

Much of the legal debate surrounding the challenge to "traditional" heterosexual marriage has involved questions of liberty, discrimination, and equal treatment. Similar moves have now been made by advocates for polygamous marriage, indicating that polygamous families may be on track to follow in the rainbow contrails of same-sex marriage. This Article argues that such an evolution is indeed likely, but for different reasons than commonly held. Instead, it applies the emerging paradigm of vulnerability theory to a recent suite of polygamy and same-sex marriage rulings, with particular focus on the figure of the "vulnerable" child. At the same time, this Article will also consider the legal and social consequences of the mechanics of reproduction within both same-sex and polygamous families. It will ask what the lessons of same-sex parents using assisted reproductive technology (ART) might offer in thinking through the future of polygamy. Plural forms of parentage indicate that we are in a period of marriage evolution, wherein multiple adult caregivers may have a potential claim on the right to parent a given child. These contemporary struggles are already transforming the legal landscape in other countries. The vulnerability analysis will shed light on why it is only a matter of time before they also shift the two-parent mode of caretaking in the United States, given the overlapping vulnerabilities of dependent children, the state, and the institution of marriage itself.

Introduction............................................................................................ 2048

I. From Parents to Partners and Back Again............................ 2056
II. Marriage, Children, and Vulnerability Theory................... 2062

A. Vulnerability Theory................................................................ 2064
B. Institutional Vulnerability........................................................ 2066

III. Same-Sex Marriage Litigation and the "Traditional" Family............................................................................................. 2068

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A. Windsor and the Vulnerability of Children ............................. 2072
B. Children in Polygamy Rulings................................................. 2074

IV. Finding Parents in the Post-Windsor Era................................ 2077

A. On the Slippery Slope: The "Inconvenient Question"............. 2081
B. What the Post-Windsor Rulings Suggest About Plural Parentage ................................................................................ 2084

Conclusion: Vulnerability Analysis and the Future of Polygamy.................................................................................................. 2087

Introduction

Much of the legal debate surrounding the challenge to "traditional" heterosexual marriage has involved questions of discrimination and equal treatment. The same-sex marriage campaign has relied heavily on such arguments in recent years, contending that the equal rights of gays and lesbians are violated when marriage is restricted only to heterosexual couples.¹ A push against discrimination on the basis of sexual orientation has become a central

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plank of the movement, buttressed by a claim to fundamental liberty interests of due process and the equal right to marry.²

The constitutional rights of gays and lesbians have also been advanced through questions of sexual privacy, which have similarly rested upon due process guarantees. In the 2003 landmark case, Lawrence v. Texas, the U.S. Supreme Court decriminalized same-sex sexual conduct, overturning an earlier ruling from seventeen years prior.³ Lawrence successfully invoked fundamental liberty interest arguments in regard to same-sex couples, and specifically the right to privacy and intimate sexual conduct beyond the reach of the state.⁴ This turn toward the language of liberty and equality has generally been seen as a critical turning point for the gay-rights movement and has in turn allowed lesbian, gay, bisexual, transgender, and two-spirit plaintiffs to make a claim for the legal recognition of same-sex marriage. Such a chronology—from the decriminalization of sodomy to the widespread

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acceptance of marriage equality—is the typical progress narrative of how gay and lesbian rights have taken hold in America.⁵

A similar chronology may be seen at work among advocates for polygamous marriage, who have recently invoked the same fundamental liberty interests that were at stake in Lawrence. For example, a complaint to challenge Utah's criminal polygamy law was filed in 2011 by Kody Brown, a practicing polygamist who was featured in a popular reality television show along with his four wives and children.⁶ In the case, Brown contended that the statute was unconstitutional, with a particular focus on the cohabitation clause—the provision that treats cohabitation with one person while married to another as a form of bigamy.⁷ To make this claim, Brown relied heavily upon Lawrence, which he argued worked to establish "a fundamental liberty interest in intimate sexual conduct," thus prohibiting the state "from imposing criminal sanctions for intimate sexual conduct in the home."⁸ The district court agreed,

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striking down the "cohabitation" clause of the Utah Code as without a rational basis and in violation of the Due Process Clause of the Constitution.⁹ While the Court did not locate a fundamental right to polygamy, nevertheless the state could not continue to criminalize consensual sexual conduct between unmarried adults. The state of Utah filed an appeal with the Tenth Circuit in september 2014.¹⁰

For polygamy advocates who trace the genealogy of gay and lesbian rights from decriminalization to marriage equality, this is a promising development indeed. The "slippery slope" argument has long held that the recognition of polygamy lies just down the hill from the legitimization of same-sex marriage.¹¹ On the other hand, scholars like Adrienne Davis have contested the

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validity of a direct correlation between gay marriage and polygamy, arguing that the analogy "distracts us from what is truly distinctive, and legally meaningful, about polygamy—namely, its challenges to the regulatory assumptions inherent in the two-person marital model."¹² Davis is correct that polygamy offers a clear challenge to the dyadic family, and certainly, the plaintiff families in gay marriage cases have been steadfast in their commitment to the two-person marital model. However, my work argues that many LGBT families, and particularly the growing numbers being created through reproductive technology, may also be truly distinctive in their multiplicity and requirement for more than two adults. While not every family will involve active relations of plural parentage, of course, the mechanics of queer reproduction nevertheless open more space for challenge to the two-person marital model than has yet been credited.

This Article will take such a proposition seriously by exploring the emerging family forms of gay and lesbian reproduction and asking what the possibility of multiple parents might tell us about the possibility of multiple partners. When kinship is no longer reliant upon a two-parent frame of reproduction and sex, what might this mean for polygamous or polyamorous families, which also involve the participation of multiple adults? How might law need to adapt and transform to the material realities of these families, and what transformations are already underway? Rather than a slippery slope, however, it may be more helpful to imagine the metaphor of tectonic plates shifting on the ocean floor. As the plates crack and groan, fresh lava erupts from below, blooming through the ridges to create new geographies and spillways along old fissures. In the same way, emerging configurations of family both displace and reinforce existing sediment, flowing along deep-lined pathways and blossoming in unexpected places.

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After Brown, it appears that polygamous families may be on track to follow in the rainbow contrails of same-sex marriage, tracing the same arcs of fundamental liberty and equality.¹³ This Article argues that such an evolution is indeed likely, but not for the reasons most commonly discussed. instead, this Article uses the vulnerability paradigm being developed by Martha Fineman and the network of scholarship around the Vulnerability and the Human Condition initiative to offer a novel lens on these developments.¹⁴ Vulnerability theory sidesteps the language of discrimination and equality to focus attention on the operation of our key social institutions, allowing us to track the relations of power in helpful and productive ways.¹⁵ it attends to the

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relationships between individuals and among the institutions we create in order to better understand the ways in which our systems of law and justice operate.

A careful reading of the recent suite of same-sex marriage rulings may have much to tell us about the future of polygamy litigation. Using the vulnerability analysis, I track the manner in which these cases have portrayed dependent children as uniquely vulnerable and in pressing need of the security provided by two legally married parents. I then pull the lens back to an institutional frame, moving beyond the figure of the child, to analyze the vulnerability of the institution of marriage, as well as the vulnerable character of the state itself. Grasping these multiple forms of overlapping institutional vulnerability will provide useful vantage upon current judicial reasoning, as well as a window into future directions for litigation. The utility of vulnerability theory in...