In the 2015 Supreme Court case that legalized same-sex marriage nationwide, Chief Justice John Roberts noted (in dissent) something strange about the reasoning of the decision. Though the case was specifically about the right to same-sex marriage, Roberts said that much of the reasoning would apply to unions of more than two people. “Although the majority randomly inserts the adjective ‘two’ in various places,” Roberts said, “it is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”
A state court in New York is testing this idea and even credits Roberts with “fore(telling)” the change. The case is not directly about marriage but about eviction, and, by extension, what makes a family.
A certain Mr. Anderson was married to one man but lived with another in a polyamorous relationship. When Anderson died, the man he lived with sued to stay in Anderson’s apartment. The landlord said that he could not stay because he had no legal relationship with Anderson.
But the New York court disagreed. Judge Karen May Bacdayan ruled that the relationship did not need to be formalized to merit legal protection. And more to the point, Bacdayan wrote that Anderson’s marriage to another man did not mean his live-in partner had no rights: “The existence of a triad should not automatically dismiss respondent’s claim to noneviction protections.”
Several cities in Massachusetts have already given legal recognition to polyamorous unions. Somerville, Cambridge and Arlington all wrote or amended their domestic partnership ordinances to recognize polyamorous relationships. In Somerville, the city extended legal recognition to polyamorous unions because no one could think of a reason not to. City Councilor Lance Davis recalls that a fellow councilor reached out to him about the limitation of domestic partnerships to two persons and asked, “‘Why is this two?’ And I said, ‘I don’t have a good answer.’”
Returning to the New York case, the judge clearly broadens the scope of the eviction case, suggesting that “implicit majoritarian animus” is the only reason why some people might think that sexual relationships should be limited to just two persons. In other words, hatred toward people in polyamorous relationships could be the only explanation for this discriminatory law.
Just as the law of marriage evolved to include same-sex unions — with this same kind of rationale — the judge argues that extending legal protections to polyamorous (or other consensual non-monogamous) unions is a matter of simple fairness in the law.
Does this case signal that the courts now have their sights set on monogamy as the next pillar to fall in the deinstitutionalization of marriage?
Before the dam of monogamy breaks and ushers in a new era of legally endorsed polyamory, we think it would be wise to pause and evaluate whether families and society would be better off for the change. Regardless of what one thinks about same-sex marriage, the move to polyamory is a breathtaking change to the public understanding of modern marriage and can be expected to have significant consequences.
A study of a nationally representative sample in 2018 found that 1% of married couples report they are currently in a consensual non-monogamous relationship, with about 4% reporting that at some point while married they were involved in CNM. Granted, 1%-4% is a small slice of all marriages. But it translates into 600,000-2,400,000 married couples in the United States. And this figure will grow. In our research we found that 10% disagree that a married couple should be monogamous, and 41% of millennials are interested in it.
Social scientists appear infatuated with polyamory. And legal journals too are punctuated with arguments for why polyamorist unions should be constitutionally protected. “If one form (same-sex marriage) deserves dignity, so does the other,” asserts a 2022 Note (author unnamed) in the prestigious Harvard Law Review. “Polyamorous people seek out intimate bonds, strive to be caring parents, and must prove they are not lesser because of whom they love.”
So, both popular media and academic writings are nudging us, culturally and legally, toward acceptance of marital polyamory. But for both pragmatic and philosophical reasons, we need to tap the breaks and think harder about where we are going.
As two of us have written before, polyamory presents problems that many people are ill-equipped to navigate, including the communication and emotion regulation skills required, and the meaning of consent when there is an imbalance of power and equity. (If you put your career on hold to care for two young children and your partner pops the polyamory question, how much power do you have to say no?) There are also pragmatic concerns, most significant among them the demands of time and energy that polyamory requires.
Ethics aside, most people don’t have the skills and resources to make something like this work. For most of us relational mortals, polyamory is closer to a character out of a Marvel movie than a real option. Instead of developing our superhero skills, it’s better to think about making monogamy work. Be all in for one rather than spread across many; “forsaking all others” can be as liberating as it is restrictive.
For society more broadly, what’s at risk when judges, legislators and policymakers jump on the popular polyamory bandwagon and seek to diminish the shared norm of marital monogamy? In a real sense, we think it risks the very meaning of marriage. Marriage has historically included an expectation (not always followed, of course) of sexual exclusivity. But polyamory undermines this expectation. Polyamory invites spouses to see themselves as perpetually on the dating market.
And while some people might see this as simply increasing the available options (we can imagine a bumper sticker that says, “If you like your monogamy, you can keep it”), the widespread acceptance of polyamory will diminish the option of being married in the traditional sense because spouses will not be able to count on each other to stay sexually faithful over the long (or short) term.
In a world molded by the acceptance of polyamory, being “married” will not include the normative expectation of sexual exclusivity. The effective possibility of entering and living out “marriage” in the traditional sense depends upon a culture that embraces its value of sexual exclusivity.
In fact, in a world with widespread acceptance of polyamory, the entire idea of marital commitment could become suspect. What would one be committing to in becoming married? To treat one’s (new) spouse as one sexual/romantic/domestic partner among many? To cherish and support one’s spouse until a more attractive option comes along and you divide your attention?
Proponents of polyamory say that issues of time spent together, resources and sex will have to be negotiated and renegotiated with open and continuous communication. But that is the point — when everything is perpetually up for renegotiation, marriage becomes a perpetually negotiated domestic partnership arrangement that persists as long as everyone feels good about it. Opening marriage to polyamory ultimately means liquidating its meaning beyond recognition.
Yes, people fall short of the demanding norms of marriage, including sexual fidelity. (Research in this area is hard to do but the best research finds about 20% of spouses confess that they have been unfaithful.) But our failures and imperfect enactment of marriage are recognized as such, and that’s the point. Even in our almost-anything-goes, sexually-saturated society, we still identify marital infidelity as wrong. And this moral call then recognizes that violations of our marital vows have consequences. Boundaries of acceptable and unacceptable behavior in marriage are enforced. We risk losing that if we accept polyamory as a moral option.
Now, maybe you disagree with us and believe polyamory isn’t going to become a thing outside of a few progressive enclaves on the East Coast. We hope you’re right. It’s tempting to think that what a few next-door polyamorists choose to do in their private lives won’t affect your marriage. And even if judges remodel the law to lighten the expectation of marital monogamy, people are still free to choose it for themselves. There we disagree; it’s not that simple. What happens in Vegas or New York or Massachusetts doesn’t stay there. It seeps into the cultural groundwater from which we all draw, especially when popular media smiles on it and we change our laws and institutions to accommodate it.
We are at risk — culturally and legally — of monogamy becoming a continuously negotiated agreement between partners rather than a universally understood axiom of marriage. When that happens, monogamy gets harder for everyone to ask for and expect; it gets easier to question and devalue. Marital monogamy will recede along with the benefits it offers families and society. That’s a price we don’t want to pay.
Alan J. Hawkins is a professor of family life at Brigham Young University and a member of the Utah Marriage Commission. Daniel Frost is an assistant teaching professor in Brigham Young University’s School of Family Life. Megan R. Johnson is a recent graduate of the School of Family Life at Brigham Young University and is currently a master’s student in the Marriage, Family & Human Development program at BYU. The views expressed here are their own.