How Polygamy Could Change America

By Luis Bravo

Luis Bravo is a sophomore at the University of Pennsylvania studying sociology.

The Obergefell v. Hodges decision marked a monumental victory for gay rights activists by legalizing same-sex marriage. In doing so, however, it also established a precedent allowing the federal government to freely regulate the institution of marriage. As surmised in his dissent, Scalia writes “to allow the policy question of same-sex marriage to be considered and resolved by a select … panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” [1] As we continue addressing ardent societal issues via the judiciary branch, we have to wonder if the fear same-sex critics held will one day become true: the recognition of polygamous marriages.  Though significantly different from gay marriage, one can make a reasonable case in favor of legalizing and recognizing polygamous unions. Such a feat, however, would require revolutionary changes in our legal system from our tax code to family law provisions.

In a 2014 survey conducted by Pew Research Center, Americans cited “love,” and “life long commitment,” as the top reasons for getting married. In a society with a romanticized notion of marriage, it is easy to forget that tying the knot yields tangible benefits beyond finding your better half. [2] In fact, the financial benefits of marriage are numerous and significant. Primarily, couples have the ability to file their taxes jointly and qualify for deductions they would have been previously ineligible for as single filers. This is just the tip of the iceberg, though, as couples are also entitled to Social Security benefits, additional protections in case of death of a spouse, and savings in expenses such as health plans. [3]

Though same-sex marriage was a milestone and changed the definition of marriage, it only slightly altered the concept. At its core, marriage is still a union between two people, but now those two people can be of any sex. Polygamy, however, would complicate the picture by adding additional actors in the marriage contract. At its core, polygamy seems like a simply concept. If two people can marry, why can’t multiple people have the same recognition? But upon closer examination, polygamy presents considerably more challenges than allowing same-sex marriages. Not only would the definition of marriage have to be once again redefined, but also all of the laws concerning marriage benefits and entitlements. [4]

Let’s take filing taxes, for example. In the current system, couples file jointly and additional people can be added as dependents. In a polygamist marriage, however, it is conceivable to have multiple people with viable incomes. Would only one partnership be eligible to file jointly and would all other spouses have to be listed as dependents? Or, would the Internal Revenue Service have to create a new tax form where people could list multiple spouses? In this case, would all spouses be eligible for deductions and incentives? Or, would only a certain amount of spouses qualify? Alternatively, is a cap on the amount of spousal deductions a more viable option?

Family law, and more specifically, child custody provisions would also have to be revised. In our current system, biological parents take precedence in child custody suits. Extended family members are also eligible for child custody if a significant relationship can be proven. This often means that the child must have spent a considerable amount of time with the extended family members in questions, and this person must also play a role in the child’s life. In child custody battles involving multiple parents, like those we would see with polygamist marriages, who would have standing for custody and who would be deemed the primary caregiver become even trickier issues than they already are. Though biological parents currently take priority, this could prove detrimental in polygamous unions as this could undercut the bond of the child to other parents. Theoretically, in a polygamous union we could expect to see all partners fulfil parental duties at one point or another. If all partners are acting as parents however, would it be fair to give preference solely to biological parents? Additionally, custody arrangements in case of divorce would be complex. If coordinating agreements between two parents is difficult enough, how would the court resolve disputes with multiple actors? More importantly, what impacts would this have on the growth and development of children? [5]

One possibility to introduce the recognition of polygamous marriages to the American society would be to allow the first pair of individuals to be legally married and allow additional partners to be recognized by civil unions. But if the fight for marriage equality has taught us anything, it’s that marriages are much more than legally recognized unions between people. Marriage licenses are a representation of the everlasting commitment of people to one another- though their benefits are plenty, they also carry heavy symbolic meaning. And just like civil unions did not do justice to the love of same-sex couples across the county, perhaps the same can be said of consenting polyamorous relationships. Though polygamy may not be an issue addressed by the Supreme Court or Congress in the near future, it is not unfathomable to think that it will at some point in history. For it to be successfully implemented, however, much more than revised marriage licenses will be required.

[1] OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. (June 26, 2015).
[2] Desilver, Drew. "5 Facts about Love and Marriage | Pew Research Center." Pew Research Center. February 14, 2014. Accessed October 20, 2016. http://www.pewresearch.org/fact-tank/2014/02/14/5-facts-about-love-and-marriage/
[3] Ashford, Kate. "11 Things You Never Thought Of When You Decided Not To Get Married." Forbes. September 26, 2014. http://www.forbes.com/sites/kateashford/2014/09/26/deciding-not-to-get-married/#86a4a543626e.
[4] Faucon, Casey. "Marriage Outlaws: Regulating Polygamy in America." Duke Journal of Gender Law and Policy, 2014th ser., 22, no. 1 (2014). http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1288&context=djglp
[5] Fry, Amy. "POLYGAMY IN AMERICA: HOW THE VARYING LEGAL STANDARDS FAIL TO PROTECT MOTHERS AND CHILDREN FROM ITS ABUSES." St. Louis University Law Journal 54, no. 3 (April 2010). http://connection.ebscohost.com/c/articles/52841335/polygamy-america-how-varying-legal-standards-fail-protect-mothers-children-from-abuses
Photo Credit: Flickr User howdyhipeople

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