polyamory and the law: plural marriage? or something else?

Written by nebula galaxy

Hi all! I’ve been wanting to put this together for a while, and I finally got around to it (thank you nanowrimo). This post is basically a summary of a paper I wrote for a class last May. I started out the paper wanting to talk about polyamory and the law (specifically what we actually want from the law and whether plural marriage would work/should be a thing), but then I realized that I couldn’t talk about polyamory without framing it the way I think about polyamory. That required a bit of background info, which I’ll summarize below.

Table of Contents

Queer Theory

When I use the word “queer,” sometimes I mean not cis and/or not straight—that’s a common usage of the word these days. But one of the great things about “queer” is that it really can’t be summarized by one definition, and neither can queer theory.

I’ve been heavily influenced by queer theory, which I think of as being about breaking down assumptions and norms and binaries. It’s about identifying how things we’ve seen as natural are actually socially and historically constructed. And importantly for polyamory, it’s about questioning the line between “normal” and “abnormal” and identifying the forces that police that line.

I also threw some vocabulary in this paper:

Heteronormativity: “the institutions, structures of understanding, and practical orientations that make heterosexuality seem not only coherent—that is, organized as a sexuality—but also privileged.”1

Homonormativity: “refers to forms of gay life that do not ‘contest dominant heteronormative assumptions and institutions but uphold and sustain them.’”2

So basically, heteronormativity is where being heterosexual is normal and privileged, and homonormativity is where gay people try to fit into heteronormativity by acting as much like straight people as possible.

One example of this that I turn to a lot is same-sex marriage. To be clear, as a young gay person, I was pretty excited when same-sex marriage was legalized in the U.S. But then everyone acted like gay rights (and anyone who experienced what might be classified as same-sex attraction) were finished and there was nothing else to worry about.

As I studied more, I learned that actually there were a lot of issues that gay people were facing, and the same-sex marriage movement basically used marriage to solve them, even though it didn’t fix the underlying problems and left out lots of people who either couldn’t or didn’t want to get married.

For examples, check out this paper by Dean Spade: www.deanspade.net/wp-content/uploads/2021/10/Marriage_Will_Never_Set_Us_Free.pdf (especially the table on page 4). One example from this is that to solve the problem of access to health insurance, activists could have fought for universal healthcare rather than legalizing same-sex marriage as the solution (so people could get their spouse on their employer-sponsored healthcare… which also requires that they even have a job with employer-sponsored healthcare).

Instead of challenging the institution of marriage or the benefits associated with marriage (like why people can’t have those benefits outside of marriage), we just expanded marriage to same-sex people and kept it as close to heterosexual marriage as possible.

When the U.S. supreme court legalized same-sex marriage, they literally emphasized that same-sex people aren’t trying to “demean” or “devalue” marriage; they want to be a part of it because of their “respect” for marriage, but because they have no choice over being gay, same-sex marriage is their only option.3

So this is an example of homonormativity—making sure gay people stay as close to the straight normal as possible. This idea will be important later when I talk about the idea of keeping polyamory as close to monogamy as possible.

Asexual and Aromantic Framework

I wrote recently about how I didn’t realize that my asexuality was framing everything in my life until I went to write this paper and realized I couldn’t write about polyamory without talking about asexual stuff, and then I also couldn’t talk about it without talking about an aromantic framework, because that also affects how I think about polyamory.

I’m going to assume that my audience on this blog is already going to be familiar with asexuality and aromanticism, but I did go into a detailed definition in my paper, and especially delved into quoiromantic and how relationships might not fit neatly into the “friend” vs. “romantic partner” binary. (if you’ve been following any of my writing or my zines lately, you know this is One Of My Favorite Topics)

Here are the main takeaways that I wanted to make sure my audience (my professor) understood:

  1. People may experience romantic attraction as a separate thing from sexual attraction
  2. People may have relationships that can’t easily be classified as platonic or romantic (and also like, a relationship doesn’t have to be romantic for it to be part of the polycule)
  3. Some polyamorous people are aromantic and/or asexual
  4. Amatonormativity is an important concept especially for asexual, aromantic, and polyamorous people

Amatonormativity: “assumptions that a central, exclusive, amorous relationship is normal to humans, in that it is a universally shared goal, and that such a relationship is normative, in that it should be aimed at in preference to other relationship types.”4

There are a bunch of other terms that also come up in this area so I threw in a bunch of definitions:

Polyamory: (I’m sure there’s not one single definition for this but this is what I used) committed, emotionally and sometimes sexually intimate relationships involving more than two persons.5

Singlism: negative stereotyping of single people (this one really surprised me! singlism is so prevalent that I didn’t recognize it all until I did some reading about it. like single people are often seen as less mature and stable than married people, and seen as having empty lives. once I read this I started seeing it everywhere).6

Couple Privilege: assumption that socially sanctioned 2-person bonds are inherently more important, “real,” and valid than other types of relationships.7

Mononormativity: social and institutional norms that make the monogamous couple the only legitimate, natural, or desirable relationship form, and privileging monogamous couples over poly or single people.8

Polynormativity: described as polyamory “that’s as similar to traditional monogamy as possible, because that’s the least threatening to the dominant social order.”9 Andrea Zanin describes polynormativity as having four norms: (1) polyamory starts with a couple, (2) polyamory is hierarchical, (3) polyamory requires a lot of rules, and (4) “polyamory is heterosexual(ish). Also, cute and young and white. Also new and exciting and sexy!”10

What this all means:

Basically, all of these terms relate to the idea that there’s an assumption that all relationships should follow a particular formula. A man and a woman (or a same-sex couple, if you have no other option) should be romantically and sexually attracted to each other and should get married, preferably have children, and never have intimate relationships with anyone else. Additionally, this relationship should be their priority and should be more important than any friendship.

Relationship Anarchy – another important idea

Relationship Anarchy: I’m still developing my understanding of relationship anarchy but right now these are the ideas I’ve gotten out of what I’ve read:

  • (1) the idea that you have total freedom and flexibility and you and another person can decide what you want out of a relationship without relying on social norms or relationship scripts
  • (2) it questions the idea that love is a limited resource
  • (3) it is actively anti-monogamy, anti-marriage, and anti-contracts/rules/policing
  • (4) it challenges polynormativity, and
  • (5) it’s about community that values care and equality and does not devalue friendship

So basically, there’s this idea that there’s a certain way you should do relationships, and both society and institutions like the law uphold those norms. But there could be so much freedom and different types of relationships if we broke away from that.

The thing is, we want government benefits, but we don’t want the government to tell us how we’re allowed to have relationships. And that creates a tension that I will return to later.

The Law

Polyamorous people face a lot of legal issues. There’s discrimination, laws against plural marriage, lack of marriage-related benefits where people can’t get married, child custody issues, and even housing discrimination (like laws against having multiple unmarried/unrelated people living together in a certain area).

I thought it would be interesting to do some research into what people have written about these different issues so far. I did a lot of reading. My Zotero folder for this project has literally 89 sources in it. Here’s what I found:

Health Insurance

I found this really really great source (Kaiponanea T. Matsumura, Beyond Polygamy, 107 Iowa L. Rev. 1903, 1948 (2021)) that talks about the issues with trying to get health insurance through marriage or domestic partnerships for poly people.

The issue is basically, if you tie benefits to relationship status, that means people have to prove that they have the right relationship status, probably by acting like a “typical” marriage. For example, they may need to live together and share finances/bank accounts. It’s unfair because today’s legally married people can do whatever they want and still be legally married under the law and access marital benefits, while poly people would have to prove that they were *really* like married people and not “just friends” trying to get health insurance for each other. (Plus there’s the issue for the employers of how many partners do they need to provide health insurance for? is there a limit?)

Universal healthcare is the much much much better solution.

Taxes

People talk about taxes a lot, like polyamorous people are going to somehow commit tax fraud. (There are no studies on this.) I found a source arguing that everyone should switch to an individual filing system anyway, and joint filing doesn’t even necessarily benefit married people.11 It depends on the incomes of each of the people in the relationship whether joint filing is good or bad. But even if joint filing benefits married people, is it really fair to be rewarding people for being married and punishing single people?

Child Custody

Child custody is an issue. When legal parents break up, one parent may use the other parent’s polyamorous status as evidence they shouldn’t get custody of the kid. Sometimes a grandparent or other relative will file for custody, arguing that the kid’s parents are unfit because they are polyamorous.

Another issue is when you have multiple parents for a kid but not all of them are legal parents, so they could potentially form a very strong connection with the kid but then something goes wrong in the relationship and that non-legal parent and the kid have no legal right to see each other if the legal parents don’t want them to.

So what are the solutions?

I think the obvious one is to deal with discrimination and stereotypes against poly people. We could make it illegal to use polyamorous status as evidence of bad parenting on its own. We could also legalize third-parent (or more) adoption, so more than two parents could have legal parenting rights, and without requiring that the parent be in a relationship with the other parents. (We should also make it illegal to discriminate against poly people in housing.)

The more immediate solution is to make contracts saying that the third parent has legal rights, but the problems with this are (1) it’s difficult and expensive, and (2) the court might ignore the contract in court. If we went this route, we’d want to make it easier to make these contracts and have the legislature advance a public policy in favor of upholding these contracts.

We could also work on social awareness and acceptance of the idea of a kid having more than two parents, or parents who are not romantically involved with each other. I know that where I live, there was a big push to improve social acceptance of gay people as part of the fight for same-sex marriage, and it did actually make a difference. Lots of little actions to fight discrimination against poly people can make a difference.

If we had plural marriage, what would happen to your stuff when you got divorced?

So basically when you’re married, depending on what US state you live in, there are different rules for what stuff is yours and what stuff is shared between you and your spouse, and then there are rules for how it all gets divided up when you get divorced. (You can also have a contract with your spouse about how things get divided up.)

There’s an interesting article about how things could be divided in a community property state,12 but I don’t live in a community property state and it got really complicated lol. Basically the best solution right now is still contract law – make a contract with your partners about how things will be divided up if you separate. Also you should make a will.

Recognition vs. Regulation

So the big issue I found in working on this paper is that poly people want recognition (they want their relationships to be counted as real and they want access to government benefits) but they don’t want regulation (they don’t want the government to determine what “counts” as a relationship and how they should do relationships).

Instead of thinking about marriage as a solution and trying to figure out how to make marriage work, we should be thinking about what specifically poly people need from the law, and how to change the law to benefit poly people without relying on marriage.

Returning to the Matsumura article, one suggestion was there could be a formal registration process where you register various relationships to determine what laws apply. For example, you could use this to get family leave from work, and employers could use this database as evidence that it’s a family member, rather than trying to determine whether your relationship “counts.” (Although I’m not totally sure how this registration process would work and not require you to also prove that your relationship “counts.” I’m including it here anyway in case anyone wants to look into this and think about it more.)

But a big thing is that you should be able to choose what you want out of your relationships and that includes things involving property, parentage, inheritance, and medical decision-making, and for now, having contracts is the best option for this.

Finally, one thing that I also think is !!! so important, is how specifically queer polyamory has the power to redefine how we think about relationships, destabilize heteronormative norms, and create community. Instead of focusing on how to make polyamory fit a marriage mold, we should be valuing the transformative potential of queer polyamory.

Anyway, I spent a lot of the semester (and a lot of in-class time lol) researching this because it was super interesting to me, as a queer poly person who starting coming up with wedding plans when same-sex marriage was legalized but now will probably never get married. I hope it’s useful to someone else and I look forward to further thoughts on this topic!

  1. Lauren Berlant & Michael Warner, Sex in Public, 24 Critical Inquiry 547, 548 (1998). ↩︎
  2. Michael Lovelock, Gay and Happy: (Proto-)homonormativity, Emotion and Popular Culture, 22 Sexualities 549, 551 (2018). ↩︎
  3. Obergefell v. Hodges, 546 U.S. 644, 658 (2015). ↩︎
  4. Elizabeth Brake, Amatonormativity, https://elizabethbrake.com/amatonormativity/. ↩︎
  5. Mimi Schippers, Beyond Monogamy: Polyamory and the Future of Polyqueer Sexualities 15 (2016). ↩︎
  6. Bella M. DePaulo & Wendy L. Morris, The Unrecognized Stereotyping and Discrimination Against Singles, 15 Current Directions Psych. Sci. 251, 252 (2006). ↩︎
  7. Amy Gahran, Couple Privilege: Having it Doesn’t Necessarily Make You an Asshole (But it Might), Solo Poly (Feb. 5, 2013) https://solopoly.net/2013/02/05/couple-privilege-having-it-doesnt-necessarily-make-you-an-asshole-but-it-can/. ↩︎
  8. Schippers, 14. ↩︎
  9. Id., at 19. ↩︎
  10. https://sexgeek.wordpress.com/2013/01/24/theproblemwithpolynormativity/ (please ignore how my footnotes aren’t consistent because I’m sleeby and my citation manual is in the other room) ↩︎
  11. Samuel D. Brunson, Taxing Polygamy, 91 Wash. U. L. Rev. 113, 113 (2013). ↩︎
  12. Diane J. Klein, Plural Marriage and Community Property Law, 41 Golden Gate U. L. Rev. 33 (2010). ↩︎

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