In 2015, with the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, same-sex marriage became legal in all fifty states. It was the victory that advocates of marriage equality had sought for years. But for some people, apparently, even the right to marry a same-sex partner isn’t enough. All over the world, the institution of “traditional” marriage is facing serious challenges from people who want to redefine it in a variety of ways. However, in today’s society, we openly welcome differences, but some folks think otherwise.

In December, for example, a family court judge in Argentina authorized the marriage of a 33-year-old Argentine woman to her 32-year-old stepdaughter. Argentina’s Civil Code allows for same-sex marriage but forbids any kind of incestuous or parent-child union. Judge Ricardo Dutto overturned the code and declared that every Argentine citizen has “the right to be treated with dignity by the laws in all dimensions of life, including marriage.”

In the United States, it’s becoming clear that “plural marriage” – the union of more than two persons in a marriage – is the next looming challenge to traditional marriage. The Hawaii-based World Polyamory Association is pushing for what the organization calls “triad” marriage. Robyn Trask, the executive director of Loving More, a Colorado nonprofit group, estimates that more than 10,000 “polyamorists” are already living in semi-married triad arrangements in the western United States.

COULD PLURAL MARRIAGE PREVAIL IN THE COURTS?

Do the proponents of triad marriage have any chance of prevailing in the courts? Noah Feldman is a professor of constitutional and international law at Harvard University. Early in 2016, Feldman published an essay titled “Polygamy Is Constitutional” for Bloomberg View. Regarding marriages of more than two people, Feldman asks, “What does the Constitution, properly interpreted, have to say about the topic?”

In his essay, Feldman takes a law professor’s meticulous approach to the question. The first issue Feldman examines is whether or not a state has the right to ban marriages involving more than two persons. The second issue he examines is whether or not a fundamental right to marry more than one person – and to make states treat plural marriages on equal terms with other marriages – can be found in the Constitution.

Under current laws, if you’re already married, then you can’t marry another person at the same time. Persons who are now in a traditional marriage – and who want to expand that marriage to include a third person – apparently would have to divorce and then remarry with the third partner. But consider the constitutional rights that already exist. In the 2003 case Lawrence v. Texas, the Supreme Court struck down all anti-sodomy laws, meaning that adults in the U.S. can legally have sexual relations with any other consenting adult. Adults also may already engage in any private religious ritual under the First Amendment’s free-exercise-of-religion principle.

WHY ISN’T PLURAL MARRIAGE ALREADY LEGAL?

Feldman says that given the existing constitutional rights, it’s odd that plural marriage or triad marriage isn’t already legal. You can have multiple sexual partners and you can conduct private religious ceremonies – constitutionally. On that basis, it seems that there’s nothing in the Constitution that would make plural or triad marriages unconstitutional. But there’s more to consider.

The next question is whether a state should be constitutionally obligated to recognize plural or triad marriage and to treat those marriages as the legal equivalent of two-person marriages. In Obergefell v. Hodges, Justice Anthony Kennedy wrote that there is a “fundamental” right to marry “the person” of your choice, and Justice Kennedy insisted that everyone is owed the opportunity for marriage regardless of sexual orientation.

Logically and legally, Feldman continues, extending legal protection to plural or triad marriages is “warranted” – unless the government has a “compelling interest” in criminalizing such marriages. Starting with the fundamental right to choose a partner, if the partner’s gender does not matter, then why should that partner’s current marital status matter either? What is the state’s compelling interest in blocking someone’s “right” to marry whomever that person chooses?

Moreover, if all persons are entitled to have their marriages acknowledged by the state, “all persons” must include those persons who desire plural or triad marriage. Two groups in the United States – Muslims and unreformed, fundamentalist Mormons – in effect already practice plural marriage, and scores of those persons would prefer that their plural marriages were recognized legally.

WHEN RIGHTS CLASH WITH STATE INTERESTS, HOW DO JUDGES RULE?

When these kinds of questions reach the Supreme Court, the justices will usually determine if a “fundamental right” is outweighed by a “compelling state interest.” For example, your right to be left alone by the state is “fundamental,” but the state’s interest in preventing drunk driving allows the police to stop drivers at sobriety checkpoints – without a warrant or even reasonable cause. We understand the necessity of stopping drunk drivers, but when it comes to forbidding plural marriage, precisely what would be the compelling state interest?

Any New York family law attorney can explain that the law already allows you to share your life with multiple partners; you just can’t obtain a document from the state that calls those partners your spouses. Historically, the opponents of plural marriage have cited the abuse, exploitation, and coercion sometimes associated with polygamous marriages as a reason for banning them. But plural marriage is not inherently exploitative, so Feldman argues that the best solution is to outlaw the exploitation rather than the plural marriages themselves.

Some judges appear ready to do just that. In 2014, a year before Obergefell v. Hodges, the U.S. Court of Appeals for the Sixth Circuit handed down a ruling that read, in part, “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.”

Obviously, child custody issues would emerge in triad marriages, and the question of divorce from a plural marriage opens up all kinds of complications. But these questions have been answered before. Plural marriage is nothing new or odd, and almost every New York family law attorney has encountered some form of it. Even in the Bible, patriarchs like King Solomon had dozens of wives, and most societies have allowed some type of plural marriage. Unlike same-sex marriage, plural marriage has deep historical roots, and according to Noah Feldman, it’s time for plural marriage to be recognized by the courts and legalized by the states.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.

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