By Lynne Strober, Mandelbaum Salsberg P.C.
I thought I would use this blog as an opportunity to raise a very out of the box issue: Should more than two people be legally allowed to marry each other?
We see multi-person relationships in the news, in marriage columns, social discussions and political analysis.
The new term is “trouple” or “throuple”. A trouple is a relationship where three individuals are in an equally exclusive relationship. The circumstances currently vary. On some occasions two marry and the third comes along. In other situations none may marry.
In the University of Pennsylvania Journal of Constitutional Law on line January 2017 entitled “Plural Marriage: When One Spouse Is Not Enough”, the oral argument during Obergefell v. Hodges, 135 S. Ct. 2584 (2015), which is the case holding, by a five-four ruling, that under the Fourteenth Amendment of the United States Constitution all states must license a marriage between two people of the same sex and recognize such a marriage if it was lawful licensed and performed in another state, raised the issue of multiple party marriages. This article references comments made by Justice Roberts that the arguments supporting same-sex marriage could be used with equal force to justify plural marriage. There was another exchange during that oral argument when it was said, according to the law review article, Justice Alito asked:
Well, what if there’s no – these are four people, two men and two women, it’s not – it’s not this sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they were all consenting adults, highly educated. They’re all lawyers. (Laughter.) What would be the ground under – under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?
Currently, more than two people can’t all marry each other. However, if the three people are in an equally committed relationship and two of them marry, the third person, who is unable to marry, risks suffering economic loss. Their property rights, rights to inherit, tax rights, interest in retirement assets and medical benefits all suffer. They cannot receive social security based upon the earnings of the two that are married. Survivorship benefits are gone. While there are no marital benefits for the non-married person, obviously, they can be provided for by a plan such as a trust or other financial arrangement. There is no spontaneous entitlement. The third person in the trouple is treated in a discriminatory manner. If the three members of the trouple decide that the three of them will not marry than all three lose rights. They are all discriminated against.
The seminal case on polygamy is the 1878 Supreme Court case Reynolds v. United States, 98 US 145. That case held that a religious belief could not be accepted where the law makes the act illegal. The evidence of religious beliefs was not admissible because the Court does not control ideas, it controls practices and behavior. The Court held the view that the marriage was perpetrating a crime against innocent woman and children; the argument that the law should not have been enacted is not a defense. Evil intent is not necessary. Knowingly violating the law for religious reasons does not make the law invalid. While the Mormon Church held to the position at the time that male members of the Church should marry more than one woman and not to do so risked the penalty of damnation in the life to come, it was not legal to do so. Therefore, religion pitted against the state created to say the least a very difficult problem. The law remains in effect; an individual cannot marry more than one person.
The University of Pennsylvania article goes on to discuss that applying the principles of same-sex marriage to plural marriage gives rise to its’ further consideration. These points are highlighted as follows:
Applying these principles to plural marriage, it can be argued that:
1. Plural marriage-like same-sex marriage is encompassed in the right to personal choice inherent in the concept of individual autonomy.
2. The right to marry is fundamental but nowhere is it required that it be limited to two people, just as it is nowhere written that it must be limited to individuals of the opposite sex.
3. Just as prohibiting same-sex marriages would harm and humiliate the children of such unions, so prohibiting plural marriages harm and humiliate the offspring of such unions who most likely would be more numerous.
4. Just as it would be demeaning to lock same-sex couples out of a central institution of our nation’s society, it would be just as debasing to bar polygamous couples from this institution.
So, we are faced with a quandary.
The same Law Journal article requires that we go back to Judge Roberts’ assertion that same-sex marriage gives rise to a reconsideration of plural marriage:
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
Of course, we then have the question of how many people can participate in a plural marriage. Can ten people marry? Are we limiting marriage to a certain number of people? So, what happens if some of the members of the plural marriage wished to get a divorce, but not all? How are their property and support rights addressed?
The biggest question here is the discrimination to the third or fourth or whatever number of people that are in the relationship with the two married people. They are being discriminated against and they are losing economic rights that belong to the two that are married.
Clearly, there is nothing in the law that addresses this issue. The laws are a reflection of a present society guided by precedent. This is a hot topic in the news as to the existence of the trouple relationship but not what happens if that relationship is fully legalized.
Some or all individuals in the multi-person are being denied the benefits of the law. They are being precluded from receiving some benefits that others receive. One of the questions is whether if the door is open to review the status of multiple individuals marrying, an article in the University of Illinois Law Review 2016 concludes with:
While voidance of the reference harms would certainly be a compelling state interest for criminalized polygamy, there are questions about whether the global empirical evidence is sufficiently strong to create the necessary foundation between polygamy and these harms giving the lack of statistical data on the outcome of polygamous Americans and the negative impacts of criminalization itself. A second concern is whether the prediction that decriminalization for religious practitioners will result in a non-trivial growth in the polygamous population in the United States is sufficiently convincing. This is relevant both to the issue of whether there is a compelling state interest in that exempting religious practitioners and whether the only possible less restrictive alternative to criminalization, legal non-recognition of polygamous marriages, would be a sufficiently effective way to keep polygamy in check. If, however, the decriminalization of same-sex marriage is a good analogy, then there’s evidence that decriminalization will lead to legal recognition, making legal non-recognition an entirely ineffective alternative.
If these questions can be successfully resolved, state criminal polygamy laws can survive the strict scrutiny required by many-RFRAs that allow federal RFRA juris prudence. Regardless of the outcome what emerges from this analysis is that scrutinizing polygamy poses difficult questions for RFRA strict scrutiny itself.
Allowing multiple marriages would create a floodgate of laws that would need to be modified. It would take enormous work to permit it. It will probably only occur in limited circumstances. Society may not be ready for this. Even if society is ready the legislatures may not be ready to change all the necessary laws. Reynolds, however, interestingly, seems to have the last word as the case holds that:
“The Court should consider the history of the times when the law was enacted.”
If we look at society now, the question is has the time come? How would we open up the floodgate of laws that would need to be changed? Is the risk of discrimination and loss of participation in the rights of married people enough for us to review the entire situation?
Again, what are the considerations in whether multi-person marriages should be permitted:
1. Are all the individuals in the multi-person relationship equally protected? Are all individuals treated the same and have the same right to be in the same relationship? If they are all not able to marry, will they all be receiving equal protection under the law?
2. Massive law changes are necessary so that marriage provides all the individuals that are married the same rights and not just to the actually married portion of the relationship.
3. What happens with regard to marital rights? As with all marriages, we have to assume that some of these multiple-person marriages will end in divorce. In a multiple marriage, would the whole unit have to terminate its’ existence or only those who wish to withdraw from the marriage/divorce be able to do so?
4. So hypothetically, if A,B,C,D and E are married, if A seeks a divorce and the remaining unit were to pay alimony and equitable distribution and then B were to seek a divorce, are B,C,D and E still paying alimony to A and then do they have responsibilities as to B? This would be very complicated, to say the least. As to children, what happens to custody. There would be may psychological parents and relationships that would need to continue to provide for a child’s best interests. What about child support? Who would be paying the child support? Would major decision-making powers belong to all the members of the marriage? One could only imagine the layers of multiple marriages with divorce and remarriage. However, the law managed to deal with two people at a time. It is assumed it will be able deal with more. The answer perhaps is that as issue arise the law will address them, as always
5. It is assumed that the percentage of the population desiring to be in a more than two person marriage is limited. Should the law provide for those individuals who desire to be in a multiple person marriage or not open the door?
6. Could more than two people adopt a child? When a child is born of a marriage of more than two people, are all the members of the marriage to be given parenthood rights?
Clearly, there are more questions than answers and more roads to travel. I offer this analysis of issues arising as a result of the presence in the news and in social commentary of multiple individuals in marriage-like relationships, and discussions of actual marriages between multiple parties. This analysis may spark discussion or go nowhere; who knows what the future holds.