Tuesday, June 21, 2011

The Law Can Adapt to Polygamy

Jessica Martin writes that the legalities around polygamous marriage don’t need to be anything new. US law can support the polygamous freedom to marry.

HBO’s Big Love and TLC’s reality-TV offering Sister Wives have thrust polygamy into popular culture in the United States. Estimates are that somewhere between 50,000-100,000 families in this country are currently risking criminal prosecution by practicing plural marriage.

There are many more polyamorous people than that, many living in family and spousal situations, and some more not (yet) living together full time. They wouldn’t use the term “plural marriage” and may not have a polygynous structure to their polycules. But odds are, everyone knows someone who is polyamorous.

She cites Adrienne Davis, JD, an expert on gender relations and the William M. Van Cleve Professor of law at Washington University in St. Louis.

In her recent article, “Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality,” published in the Columbia Law Review, Davis approaches polygamy as a problem of bargaining, cooperation and strategic behavior.

She proposes some default rules that might accommodate polygamy, while ensuring against some of its historic and ongoing abuses.

Sounds good, but then the article goes there

“Polygamy creates vulnerabilities and opportunities for exploitative behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts, from Elizabeth Smart to Warren Jeffs and the raids on his Yearning for Zion compound,” Davis says.

The majority of people who want the polygamous freedom to marry are nothing like Jeffs or anyone how has been shown to abuse children. Do we judge monogamy by what some monogamists do?

She says that conventional family law, which limits its focus to “couples,” may not be up to the task of regulating polygamy, but a legal platform such as business law may address polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in a relationship characterized by multiple partners, ongoing entrances and exits, and life-defining economic and personal stakes.

“Commercial partnership law has addressed these concerns through a robust set of off-the-rack rules,” Davis says. “There are already conceptual models for what might be thought of as plural marital associations. These include how new parties are admitted, how the association governs itself, and how people can leave.”

As I’ve been saying all along, it is possible. Bigots may try to hide behind “how would this be handled?” But it can be done. We can move to full marriage equality.
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