Polyamorous Rights Advocates See Marriage Equality Coming for Them
Justice John Roberts was spot-on about polygamy, advocates say.
Robyn Brown, Meri Brown, Kody Brown, Christine Brown and Janelle Brown from reality TV program "Sister Wives" are suing to decriminalize polyamorous living arrangements in Utah. Other polyamorous advocates anticipate lawsuits seeking marriage rights.
Like others across the country last week, a Washington, D.C., couple and their housewarming guests buzzed about the Supreme Court's ruling that legalized gay marriage in all 50 states. But they were far more interested in Chief Justice John Roberts' dissent than the majority opinion that made same-sex marriage the law of the land.
The couple – a husband and his wife – are polyamorous, and had just moved in with their girlfriend. And in Roberts' dissent, they saw a path that could make three-way relationships like theirs legal, too.
“Did you see we were mentioned by Roberts?” the husband beamed as he welcomed guests the day after the ruling. The chief justice wrote that polygamy has deeper roots in history and that the decision allowing gays to marry "would apply with equal force to the claim of a fundamental right to plural marriage.”
“If the majority is willing to take the big leap," he added, "it is hard to see how it can say no to the shorter one.”
[READ: Religious Liberty Is Rallying Cry After Gay Marriage Ruling]
An attorney at the housewarming who works at a prominent Washington law firm tittered at the thought of repurposing gay rights arguments to sue for government recognition of plural marriages. It would be a lot of fun, he told his host, if he wasn’t saddled with corporate law work.
Roberts' analysis wasn't unique. The suggestion previously was made by judges on the U.S. Court of Appeals for the 6th Circuit, who in November wrote, “there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.”
Some gay marriage supporters see the analogy as far-fetched. But for polyamorous advocates it’s welcomed as a potential boost for future legal efforts.
Some advocates believe Roberts' dissent will prove as useful to the polyamorous movement as dissents written by Justice Antonin Scalia in gay rights cases were to the same-sex marriage movement. In Lawrence v. Texas, a 2003 case, and in 2013's U.S. v. Windsor, Scalia warned his peers were laying the groundwork for universal recognition of same-sex marriage, which other federal judges pointed to in their decisions knocking down state bans on gay marriage.
[FLASHBACK: Should Gay Marriage be Legal Nationwide?]
"I do think the dissent by Roberts provides a legal foothold for people seeking polyamorous marriage rights," says Diana Adams, a New York attorney who specializes in nontraditional family law. "As Roberts points out, if there's going to be a rejection of some of the traditional man-woman elements of marriage... those same arguments could easily be applied to three or four-person unions."
Adams says she's heard chatter of looming lawsuits now that the same-sex marriage issue has been resolved. She personally is interested in helping extend co-parenting arrangements for three or more people to benefit same-sex couples who cannot reproduce with each other, and she says such cases could ultimately break ground for polyamorous families.
Robyn Trask, the Colorado-based executive director of Loving More, a polyamory support organization, says she believes Roberts’ dissent will prove prophetic.
“I don’t think it’s going to be as far in the future as people think,” she says.
Trask says the marriage issue currently is “debated within our own community, similar to the gay community – there are people who don’t believe we should go after plural marriage, and there are those who do.”
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A significant majority within the community appears open to the idea of marriage with multiple partners should it become legally possible. In a 2012 survey, Loving More asked more than 4,000 polyamorous people and found 66 percent were open to plural marriage, with 20 percent unsure.
There are many practical reasons to marry, Trask says, including immigration and medical decision-making rights. She has personal experience with both, marrying a Japanese partner in the late 1980s so he could remain in the U.S. and struggling for the right to speak for a female partner while she underwent surgery.
She says she once knew a married American couple who divorced so one could remarry a Canadian partner who wanted to live in the U.S. Another three-person relationship featured an American, a Canadian and a Mexican who wished to live together.
Despite the real-world benefits of legal marriage, Trask says many people living in polyamorous relationships “are in the closet and being very careful,” with a large number feeling it’s more important to protect their employment, housing and children than to lead the charge for marital rights.
But she says polyamorous partners, particularly younger ones, are increasingly “out” about their lifestyle, and believes change will come with greater swiftness than for gay people. "They blazed the trail, if you will,” she says.
