Ariel Katz

“The Polyamorous Predicament: State Recognition of All Contracts Need Not Generate Controversy”

January, 2010 Print Edition

Mention polygamy and the HBO show Big Love is sure to pop into most people’s heads. The fictional show, which premiered in 2006, portrays a family living in Utah that practices polygamy.  Due to such portrayals, along with the high profile Texan raid on a polygamist compound in 2008, most college students do not think about polygamy or its reverse, polyandry, in a serious light. The majority of Americans dismiss it as a bizarre, unorthodox practice that exists within the confines of the rural compounds of religious extremists.  These prejudices have colored the ability of Americans to rationally consider the issue of legal recognition of polyamorous relationships.

Despite the beliefs and practices of the majority of Americans, polygamous and polyamorous relationships should receive the same government recognition as any straight relationship.  We need not  practice it or approve of it to adopt this view; those of us who are not gay still advocate for same-sex marriage.

Nor would polyamorous marriage fundamentally transform or remake society; under the current legal arrangement in this country, privacy protections already permit polyamorous relationships to exist without the recognition or sanction of the government.  In 1965, the Supreme Court ruled in Griswold v. Connecticut that the United States Constitution protects a right to privacy. Prior to the case, the Connecticut law had regulated the sale of contraceptives.   In Griswold, the Supreme Court ruled in favor of the individual right to privacy and the ability of people to purchase such products, marking the first time that the Supreme Court found constitutional evidence supporting such a right.  This finding was promptly applied to many areas of society, most notably in 2003 in Lawrence v. Texas, which legalized sexual acts between consenting individuals.  As such, polygamous relationships currently exist, they merely lack the active recognition of the state.

Critics may argue that polygamous relationships are abusive, both psychologically and physically, and thus should not be recognized by the state. Still, many “normal” marriages between a man and woman are abusive.  Moreover, those men (or women) who abuse their spouse or spouses in a polyamorous marriage could simply be prosecuted under existing laws regarding domestic abuse.  Those concerned with the potential for abuse in such relationships should find hope that government recognition of polyamorous relationships will allow any abused women legal recourse provided by a divorce process.   The prospect of abuse, of course, raises a larger question of whether the government should interfere with marriage if they foresee it to be abusive? Should a former prison inmate or war veteran be forbidden from marriage merely because of the prospect of abuse?  In a free society, adults should be able to make decisions for themselves and make contracts with one another.  This right to contract necessitates the allowance of consensual polygamous and polyandrous marriages.

Still, others argue that polyamorous marriage starts us down a slippery slope that will culminate in the dissolution of a moral American society. If polygamous marriage becomes legal, it is highly improbable that everyone will suddenly embrace it with open arms and try it out. Religious institutions will remain supportive of the traditional family structure, as will many people due to their own moral beliefs.  Legalizing polyamorous marriage will only lead to people making contracts to protect themselves from abuse.

Ultimately, the argument for legalization for polyamorous marriage boils down to individual’s right to privacy. We should be able to make contracts, of which marriage is one, with whoever we want and as many people as we want, subjective conceptions of morality notwithstanding. It is time for rationality to take hold of the American legal system. We can leave social conservatism and traditional beliefs to religious communities and institutions.