The Youngs are women in a committed relationship who love and care for and look after each other. They share domestic duties and financial responsibilities. They share a bed and make love. They have a child (courtesy of sperm donation and in vitro fertilization) and intend to have two more. They were united in a ceremony in which they wore beautiful white wedding gowns and were walked down the aisle by their fathers. They are just like any ordinary Massachusetts opposite- or same-sex married couple. Only they’re not a couple. Doll, Kitten, and Brinn Young are a throuple. And, for now at least, Massachusetts, like other states, does not recognize as marriages “polyamorous” unions (romantic partnerships of three or more persons).But Doll, Kitten, and Brinn think that’s unfair and should change. They want marriage equality for themselves and other polyamorists. They are proud that their home state was in the vanguard of legally recognizing same-sex partnerships as marriages, thanks to the bold intervention of the liberal-dominated Massachusetts Supreme Judicial Court. But they insist that the same principles that generated what they and most liberals (and, it seems, more than a few conservatives) believe to be “marriage equality” for gays should produce the same result for other sexual minorities, especially polyamorous people like themselves.If gender doesn’t matter for marriage, they ask, why should number matter? “If love makes a family”, as the slogan went when the cause being advanced was gay marriage, then why should their family be treated as second class? Why should their marriage be denied legal recognition and the dignity and social standing that come with it? Doll, Kitten, and Brinn love each other and are as committed to each other and their child and future children as are, say, Donald Trump and his third wife, or Elton John and his husband. They find fulfillment in their long-term sexual partnership, just as opposite- and same-sex couples find fulfillment in theirs. The dignity of their relationship, not to mention their own personal dignity, is assaulted, they believe, when their marriage is treated as inferior and unworthy of legal recognition. Their child and future children are stigmatized by laws that refuse to treat their parents as married. And to what end? How does it harm the marriage of, say, John and Harold, the couple next door, if the Commonwealth of Massachusetts recognizes the Youngs’ marriage? Indeed, what justification can be given—what legitimate state interest can be cited—for dishonoring Doll, Kitten, and Brinn and their marriage? Surely, the only explanation, apart from religious scruples of the sort that may not constitutionally be imposed by the State, is animus and a bare desire to harm people who are different?Over the past couple of years, a number of mainstream websites, newspapers, and magazines—Salon, Slate, USA Today, Newsweek, the Atlantic—have run sympathetic stories about polyamory. Newsweek reports that, though polyamory remains unconventional, it is far from unheard of: there are approximately 500,000 polyamorous households in the United States today. Polygamous and polyamorous relationships, often with children in the picture, are depicted as just one more historically misunderstood way of being a family—and those who enter such relationships as an often-victimized minority. The polyamorous partners profiled in the stories sometimes weave discussion of the ordinary challenges and simple joys of domestic life—dealing with disagreements, getting the kids to do their homework or practice the piano, celebrating birthdays and other special occasions—together with peek-a-boo accounts of what it’s like for throuples or larger polyamorous units to share a bed and have sex.Last month, the New York Times published an essay by University of Chicago law professor William Baude urging readers to keep their minds open towards polygamy and other multiple-partner sexual relationships. He noted that they could have some advantages over monogamous partnerships—for example, more parents available to look after the kids and share other domestic duties—and he easily identified the weaknesses in anti-polygamy arguments made by writers like Richard Posner, who support redefining marriage to include same-sex partnerships but want to draw the line there. “We should remember”, Baude observed, “that today’s showstopping objections sometimes come to seem trivial decades later. Very few people supported a constitutional right to same-sex marriage when writers like Andrew Sullivan and [Jonathan]Rauch were advocating it only two decades ago. (Judge Posner, for example, did not.) As we witness more experiments with non-nuclear families, our views about plural marriage might change as well.”Many polyamorous people say that their desire or felt need for multiple partners is central to their identity, and that they have known from an early age that they could never find personal and sexual fulfillment in a purely monogamous relationship. The message is that they are the next sexual minority whose human rights, including of course the right to marriage equality, must be honored. They’re following the same playbook as same-sex marriage advocates in mainstreaming polyamory and putting in place the cultural predicates for its legal recognition. And it’s working. In the most recent polling, fully a quarter of Americans are now prepared to recognize polyamorous marriages, and among religiously unaffiliated citizens (whose numbers are climbing in the United States) the figure is 58 percent. These percentages represent far higher support than gay marriage had within the memory of more than a few readers of this essay.For years, of course, many advocates of sexual freedom and same-sex marriage counseled against openly advocating polyamory—whether in the form of polygyny (one husband having several wives) or in the form of group bonds like the Youngs’—lest the horses be frightened. But not everyone listened. University of Arizona professor Elizabeth Brake, for example, a prominent advocate in the world of academic philosophy for broadening the historic understanding of marriage, has for many years promoted what she calls “minimal marriage”, in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.” Judith Stacey—a New York University professor who is in no way regarded as a fringe figure—also let the cat out of the bag in the course of testifying before Congress against the Defense of Marriage Act. She expressed hope that redefining marriage would give it “varied, creative, and adaptive contours . . . [leading some to] question the dyadic limitations of Western marriage and seek . . . small group marriages.” Indeed, as far back as a decade ago, in a statement then titled “Beyond Gay Marriage”, more than 300 “LGBT and allied” scholars and advocates called for legally recognizing as marriages or the equivalent sexual relationships involving more than two partners. Among the signatories were such influential figures on the left as Gloria Steinem, Barbara Ehrenreich, and Kenji Yoshino.These and other open advocates of polyamory and its legal recognition now look like they were ahead of their time. With USA Today, Newsweek, and other respected publications sympathetically presenting polyamory, more and more polyamorists and allies of their cause will feel safer coming out. The politicians aren’t there yet, of course, but in this late season of our experience we all know that they are almost always among the last to arrive at the party. Soon enough, a small number will break the ice, just as they did on same-sex marriage. They will, to use President Obama’s famous description of his own flip-flop on same-sex marriage, “evolve.”The late and extraordinarily influential legal philosopher and constitutional theorist Ronald Dworkin, a champion of aggressive judicial action to advance liberal causes, taught that law is fundamentally about a society making commitments to certain moral principles and working out their implications over time. Fundamental to that enterprise is treating like cases alike. The heart of the case for same-sex marriage was that gender differences are irrelevant to what marriage actually is, namely, a form of committed sexual-romantic companionship or domestic partnership. The challenge for same-sex marriage supporters is either to accept polyamory on the basis of the very same vision of marriage, or to offer a new and more specific vision—one that can explain why number is relevant but gender is not.Even as an increasing number of “marriage equality” supporters agree that the time for recognition of polyamorous marriages has come, some still try to avoid that challenge. Only a few same-sex marriage supporters have been willing to take the latter course and hold the line against polygamy as a matter of principle—to say “gender doesn’t matter, but number does: marriage is, as a matter of principle, a two-person partnership; so unions of three or more persons ought to be denied the dignity of legal recognition.” The trouble for those in this last category is that they can’t come up with anything approaching a plausible argument. They either try to make something out of the alleged “fact” that homosexuality is a “sexual orientation” but polyamory is not, or they point to practical difficulties in administering principles of family law for partnerships involving more than two people. Occasionally, you will hear an advocate of gay marriage who opposes polyamory say “a person cannot fully give himself or herself to two people as he or she can to one person.” And even more rarely someone will suggest that polyamorous unions are not psychologically or morally appropriate for bringing up children.From the perspective of polyamorous people and their allies, all of these arguments are weak to the point of being contemptible—thin rationalizations for excluding them from a recognition and status that others in relevantly similar relationships are given. For poly people, being poly is as central to their identity—and being in polyamorous relationships is as vital to their fulfillment—as being gay and being in a same-sex partnership is for persons who are sexually or romantically attracted to persons of the same-sex. Polyamorists object to being the sexual minority that gets thrown under the bus, forced to settle for a relationship that fails to fulfill them or respond to who they are, or denied the social support and legal recognition that others’ relationships receive.As for practical problems, they note that modern law in a wide variety of areas deals with complexities far greater than those that the legal recognition of Doll, Kitten, and Brinn Young’s marriage would pose. Administrative burdens are, they observe, no basis at all for denying them the basic civil right to marry. And they find it insulting when non-poly people claim that being polyamorous is not central to their identity and fulfillment, or assume that people like Doll, Kitten, and Brinn cannot give themselves as fully to each other as gay or straight monogamous people do. Based on their personal experience and what they know from the experience of other poly people, they also reject the view that being in a multiple-partner union increases the likelihood of marital problems arising from jealousy. To them, this is stereotyping, sheer prejudice, dressed up in scientific garb.Finally, they do not buy the idea that polyamory would unavoidably or, in the modern world, even frequently lead to women’s subordination. In any event, why should their rights to be who they are and to have their relationship honored and their children protected be held hostage to a fear that other people will conduct their marriages in morally bad or psychologically unhealthy ways? If forms of patriarchy that were common in the past provide reasons to limit marriage, they equally provide reasons to abolish marriage altogether.Of course, the case for polyamory and its legal recognition presupposes that marriage is in fact what so-called “marriage equality” advocates have depicted it as being: committed sexual-romantic companionship or domestic partnership. And this is precisely what has been denied by defenders of what used to be known as “marriage” and is now called “traditional marriage” (i.e., as the union of husband and wife). Those defenders are most assuredly right when they say that the new idea of marriage is an innovation—not an “expansion” of marriage but a genuine redefinition, one that treats what has historically been regarded as a relevant difference, namely sex or gender, as if it were irrelevant, not central to the very idea and social purposes of marriage.In our law and culture, marriage has historically been understood as a conjugal union in which a man and woman consent to unite in a bond that is (1) founded on their sexual-reproductive complementarity, (2) consummated and renewed by acts that unite them as a reproductive unit (“one flesh”) by fulfilling the behavioral conditions of procreation (whether or not the non-behavioral conditions happen to obtain); and (3) specially apt for, and would naturally be fulfilled by, their having and rearing children together. Participating in marriage as a conjugal union is regarded as inherently humanly fulfilling, i.e., valuable not merely as a means to something else—even the great good of having and rearing children—but in itself.The idea of marriage as a conjugal union explains the structuring features of marriage in our moral and legal traditions, including (1) the rules of consummation (including annulability for non-consummation, but not for infertility); (2) the requirements of (a) monogamy, (b) sexual exclusivity (fidelity), and (c) permanence of commitment (“till death do us part”); and (3) the treatment of marriage as a properly public matter, something that law can and should recognize, support, and regulate, and not a merely private or religious matter, like baptisms, bar mitzvahs, and ordinary friendships (even the closest and most intimate).This understanding of marriage is radically different from the revisionist conception that one must adopt if sexual-reproductive complementarity is irrelevant to marriage. According to revisionists, marriage is essentially a union at the affective level. What sets it apart is a certain emotional bond. It unites partners in an especially close or intense form of friendship, one which ordinarily involves sex but just as a way of fostering and expressing affection. Sex is thus, strictly speaking, incidental, not inherent, to the relationship. The same is true, of course, of procreation—it is merely incidental. In the words of John Corvino, a leading philosophical defender of the revisionist view, marriage is “your relationship with your Number One person.”The conjugal idea of marriage, by contrast, conceives of persons as unities of body and mind, and of marriage as uniting spouses at all levels of their being: the biological as well as the affective and rational-dispositional. Acts of bodily union fulfilling the behavioral conditions of procreation are the distinctive completion and seal of this uniquely comprehensive union. These acts don’t just produce feelings of intimacy; they literally embody the spouses’ marital union by making them a biological (sexual-reproductive) unit.Sex is thus integral to marriage, which is part of what distinguishes marriage from other forms of companionship. All friendships are unions of hearts and mind; marriage, however, is a union not only at that level, but at the bodily—biological—level as well. It is not distinguished from ordinary friendships, as on the revisionist view, merely by its degree of emotional intensity, but in kind. It is not accurately understood as “your relationship with your Number One person.”As a conjugal relationship, rather, marriage is the type of bond that is ordered to procreation and would naturally be fulfilled by spouses having and rearing children together. On the conjugal understanding, marriage is the relationship that unites a man and woman as husband and wife to be father and mother to any children who may come of their union. Its social role is to maximize the chances that children will grow up in the context of the committed love—the matrimonial bond—of the man and woman whose actualization and renewal of that bond brought them life, linked to their parents and to their parents’ families. It ensures that as many children as possible will be reared with the advantages of both maternal and paternal role models, influences, and care.The revisionist challenge, especially as a result of the sexual revolution and its mainstreaming of non-marital sex and cohabitation, out-of wedlock child bearing, and divorce (especially with the introduction of “no fault” divorce), has eroded the public understanding and support of marriage as conjugal union, though this vision has not been completely lost. The erosion helps to explain why an idea that was quite literally inconceivable as recently as a generation ago—the idea of “same-sex marriage”—has not only suddenly become intelligible to but indeed overwhelmingly dominant among cultural elites. For many cultural elites, it is now the traditional conception of marriage—the idea of marriage as a conjugal union—that is unintelligible, to be explained only by animus, prejudice, or antiquated religious dogmas.Of course, if marriage is distinguished mainly by its emotional intensity, then there really is no reason that two men or two women cannot marry. Any two people, after all, can feel romantic affection for each other, commit to providing support and care for each other in a shared domestic life, and believe that their relationship is enhanced by mutually agreeable sex acts with each other. But so can three men. Or three women, say, Doll, Kitten, and Brinn. Or a man and two women (whether the three are united as a polyamorous ensemble, or the man is in separate marriages with each woman). Or a woman and two men. Or four people. Or whatever.In Obergefell v. Hodges, five justices of the Supreme Court, led by Justice Anthony Kennedy, claimed to find in the Due Process Clause of the Constitution’s 14th Amendment the revisionist understanding of marriage. Now, the actual words of the clause—“No state shall deprive any person within its jurisdiction of life, liberty, or property without due process of law”—seem to be all about justice in criminal cases or in analogous civil or administrative actions. States may not execute someone (depriving him of life), imprison someone (depriving him of liberty), or subject someone to a monetary fine or forfeiture (depriving him of property) without affording him such basic procedural protections as the presumption of innocence, an impartial judge and jury, and so forth. But the Supreme Court instead followed a long, if notoriously intellectually dubious, tradition of reading this clause “substantively” to include unenumerated rights that enough justices believe people should enjoy. Thus Kennedy, joined by Ginsberg, Breyer, Sotomayor, and Kagan, announced the discovery of a right to same-sex marriage that would certainly have shocked the Americans of the late 1860s who ratified the 14th Amendment—and even Americans of the 1960s, for all their sexual-revolutionary pretensions.For Kennedy, the conjugal understanding of marriage had to be jettisoned in favor of the revisionist conception because the dignity of persons who construct their identities around same-sex attraction and find their fulfillment in same-sex partnerships requires it. This dignity is conferred by the state and is, in effect, withheld when the state treats marriage as a conjugal union rather than as sexual-romantic companionship.Lacking any warrant in the text, logic, structure, or original understanding of the Constitution—or even any clear and disciplined engagement with other court cases, right or wrong—Kennedy’s opinion merits the condemnation that John Hart Ely, the late Dean of Stanford Law School (and himself a pro-choice liberal) heaped on Justice Harry Blackmun’s opinion in Roe v. Wade: “It is not constitutional law and gives no sense of an obligation to try to be.” The four dissenting Justices in Obergefell—Roberts, Scalia, Thomas, and Alito—had no difficulty skewering, even ridiculing, Kennedy and the majority for failing to identify an even remotely plausible constitutional ground for their decision. Whatever one’s beliefs about the comparative merits of the conjugal and revisionist conceptions of marriage, it is difficult to see how the Constitution can be said to have dictated a choice. In the tradition of Dred Scott v. Sandford, Lochner v. New York, and, to be sure, Roe v. Wade, the decision is a straightforward play by a Supreme Court majority to usurp the authority of the people acting through representatives (and directly, in state referenda). It unconstitutionally imposes on the nation the beliefs of five unelected, unrepresentative men and women about what counts as social progress.But lay all that aside for now. I introduce the case because it forces us to focus on the logical implications of abolishing the conjugal understanding of marriage in our law and replacing it with the revisionist idea of marriage as sexual-romantic companionship or domestic partnership, all by judicial fiat. Here is where Professor Dworkin’s point about the centrality of principle to law has its significance for the cause of polyamory, at least for his fellow liberals who approve of the role assumed by the judiciary in cases such as Roe and Obergefell. Where the same principle requires it, he who says A must say B. And he who says that the judiciary has the power to dictate A must say that the judiciary has the power to dictate B, even if B doesn’t yet share A’s popularity and even if the people’s representatives in the legislature say no to B. The constitutional case for the judicial imposition of same-sex marriage requires belief that the Constitution—somewhere, somehow (perhaps lurking in “penumbras formed by emanations”)—incorporates the idea of marriage as sexual-romantic companionship. But if it does, then there can be no reason of principle for withholding legal recognition from the marriage or marriages of, say, Yemeni immigrants or fundamentalist Mormons who are in polygamous partnerships, or polyamorous people like the Youngs. To observe that 75 percent of the public still opposes legal recognition of such marriages is only to highlight the need for the courts to intervene to vindicate the marriage equality rights of those in multiple-party relationships—people who cannot count on their fellow citizens to treat like cases alike when it comes to sexual partnerships that they happen disapprove of on moral or religious grounds.By constitutionalizing the issue—by purporting to find a certain vision of marriage in the Constitution—the Court eliminated the possibility of accommodations and compromises in the political process. By its own lights, the question is no longer properly left to the moral or political judgments of the people or the vagaries of democratic bargaining. As a matter of constitutional principle, it is an all-or-nothing game—a game that only judges are permitted to play. The American people have been told by the Obergefell majority to watch from the bleachers.If Obergefell stands—and, for what it’s worth, I myself hope it will not—the question of legal recognition of polygamous and other polyamorous partnerships cannot be avoided. The arguments of those who want to retain the idea of marriage as mere sexual-romantic companionship or domestic partnership while denying legal recognition of polyamorous marriages will sound weaker and weaker, more and more like mere rationalizations for stigmatizing what many people (for now, at least) still find icky. Under the pressure of the natural human desire for rational consistency, the liberal movement and the Democratic Party will gradually come to embrace the polyamorists’ cause. And liberal jurists, though they may swat away on procedural grounds the first few constitutional challenges to marriage laws excluding polyamorists’ romantic bonds from recognition, will eventually have to say B.Will there be a C? Sure. That will likely be the abolition of laws against consensual adult incest (parent-child or sibling) and, correspondingly, the elimination of consanguinity laws forbidding marriage between a parent and his or her adult child and between adult siblings. Western Europe was a bit ahead of the U.S. on same-sex marriage, and is now pointing the way forward for sexual liberals on incest as well. Germany’s National Ethics Council this year issued a report urging parliament to revoke legal prohibitions of incest involving consenting adults, arguing that these prohibitions violate “fundamental freedoms” and “force people into secrecy or to deny their love.” The Council described opposition to consensual adult incest as a mere “social taboo”, and declared that “neither the fear of negative consequences for the family, nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition. The fundamental right of adult siblings to sexual self-determination has more weight in such cases than the abstract protection of the family.”If one grants the premises of sexual liberalism—that consenting adults have a right to enter into whatever types of sexual relationships they like without state interference—and embraces the revisionist conception of marriage as committed sexual-romantic companionship, then what the German Ethics Council says has to be correct. Its logic is impeccable. If there is a flaw, it must be in the premises. And yet the premises are precisely the ones that have been adopted by the liberal movement and the Democratic Party in our time. So C will come in due course, unless A is abandoned.
Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law”, Ethics 120 (2010): 303. See Gallagher, “(How) Will Gay Marriage Weaken Marriage as a Social Institution”, 62. “Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families and Relationships”, BeyondMarriage.org, July 26, 2006, http://beyondmarriage.org/full_statement.html. According to the conjugal understanding, marriage is a uniquely comprehensive union. It involves a union of hearts and minds; but also—and distinctively—a bodily union. Just as bodily union within a person consists in coordination of all the parts for a single bodily end of the whole (survival), so bodily union between two people involves coordination (coitus) toward a single bodily end of the couple as a whole (their reproduction). Hence marriage, the bond embodied by that act, is inherently extended and enriched by procreation and family life and objectively calls for similarly all-encompassing commitment, permanent and exclusive. In short, marriage unites a man and woman holistically—emotionally and bodily, in acts of conjugal love and in the children such love brings forth—for the whole of life. For a fuller account, and a response to criticisms advanced by revisionists against the conjugal understanding (such as the claim that the conjugal view cannot rationally justify its historic willingness to recognize as valid the marriage of a man and woman who, due to infertility, cannot conceive children together), see Sherif Girgis, Ryan T. Anderson, and Robert P. George, What is Marriage? Man and Woman: A Defense (Encounter Books, 2013). That is why they are not content with merely revising the law to enshrine “same-sex marriage”; anti-discrimination statutes and ordinances as well as well as informal cultural means (shaming, ridiculing, hounding) must be used to crush those who dissent from the new orthodoxy. We see that conviction at work in the fates of the photographers, bakers, and florists who refuse to participate in same-sex weddings, the counseling student who declined to train to counsel same-sex couples, the fire chief of Atlanta who wrote a book defending biblical teachings on marriage and sexual morality, and Brendan Eich, the technology genius who was pressured to give up the top job at Mozilla because he had contributed to a pro-traditional marriage referendum in California.