Gay marriage, yes. Legalized polyamory, no.

[elfs]

Oh, good. Jonathan Rauch has finally written a response to Stanley Kurtz's argument that if we extend marriage rights to homosexuals, we have no social-policy grounds under which to deny them to polyamorists. Rauch's argument is compelling and echoes my own: indeed, he uses the same material I did last year, adding to it more recent examples from the current Chinese experience.

The argument is a simple one: if you grant legal recognition to polyamorous households, then the ones to take the most advantange of the system will not be liberal SF-con-going women with two husbands but rabidly Christian and Mormon harem-collectors. Households with a surfeit of wives will easily outnumber households with multiple husbands. We don't live in a perfect world, and there's not much we can do to change human nature such as it is. In our world, the one where policy writers have to live, if you grant legal recognition and the transfer of marriage rights to polyamorous households, you will soon arrive at a state where you have a large underclass of men who have no chance to marry.

History records no state that was not monagamous that succeeded as a liberal democracy. Rauch misses making an important point: polygamy is a powerful tool for conservative *women*; with more than one woman in the household, they can exert more influence over the man (provided, of course, that the women all have a common agenda), and women will have the power to "marry up" into high-status households. I think that's a point worth holding onto: in a society where polyamory in the norm, you'll have a group of women who are monogamous precisely because they can't marry up. Polygamy leads to a stratification based upon criteria liberal democracies don't want to face.

But the point inevitably comes back to the real world argument that legalized polyamory would benefit households with many wives, and those with many husbands would be rare. In such a world, there would be a class of subalterns, subordinate men with no hope of ever enjoying the stabilizing effects of marriage. Rauch concludes:

Polygamy is, structurally and socially, the opposite of same-sex marriage, not its equivalent. Same-sex marriage stabilizes individuals, couples, communities, and society by extending marriage to many who now lack it. Polygamy destabilizes individuals, couples, communities, and society by withdrawing marriage from many who now have it.

Comments

[hastings1066.livejournal.com]

In general I agree with your points, however, a few comments.
Partnership law is really ugly, and much of it is only enforceable in the state of creation, and doesn't protect yourself in the case of liability suits, and many other things. I think that if a polyamorous configuration that is stable enough to enter into such an agreement would need to incorporate to create a sufficient shield to protect the entire family unit from the actions of 1, and also against the state.

Also, in the case of paternity and custody, partnerships again fail here, but I believe corporations do not have provisions for this either (IANAL, however). The kin/guardian/relative wording is integrated throughout tax, medical, liability, estate, grant, and other law sets that you need a lightning rod that will allow that to be set and unset by contract (which is currently only alluded to in states that support "civil unions" and not really tested or fully determined). Until you can set that to whomever(s) you want, there will be a fundamental failure in establishing a partnership/corporation/family contract that is strong enough to protect everyone and do what the intent is.

Yes, the idea of removing the idea of a "default relationship configuration" may do the same thing, but people like having titles (husband, wife, SO, life partner, that which I shall worship other than myself, etc) and they like simple. Contracts that are binding are not simple (hell, my MSA was 16 pages in small print, and it was amicable no-fault and done together with my ex and the same lawyer), and if you are trying to create a contract that takes the brunt of all the law types I listed, all you are doing is requiring that one person in your poly configuration be a contracts lawyer. Until we figure out how to make things "simple" we need to figure out how to redefine certain words that are used everywhere (spouse, next of kin, etc) to be something else but just as legal and binding. Then after that, you can start to change the myriad of laws and entire titles of law that would need to be changed, ratified, challenged and accepted.

These changes would affect domestic partnerships, civil unions, marriages [sic], adoption, and custody. But more importantly, it is a direct challenge to state's rights (which is always fought in the US Supreme Court and therefore time-consuming). Corporation law has to hold up to interstate commerce laws, which are all Federal. If you use this, rather than partnership/marriage/etc laws that tend to be state only, you start where the problem is (as you said, mainly financial), and work toward a freestanding family that are citizens of the US first and state citizens second, you can get much more protection for a family than you can at the state and local level. But in parallel, you need to fix the state level, but first you say nice doggie, *while* you find a big stick ;)

And look who is verbose instead of getting work done *P

[mundens.livejournal.com]

Just a quick response.

I have to admit I only know local (New Zealand) contract and partnership law, which covers the whole country, and is actually quite simple (at least in the basic case), in that there is a default contract that is assumed if no other contract is drawn up.

Contract law using the default contract in New Zealand is automatically applied to any business operation, even if there is no signature or specific document. A verbal agreement, or an implied contract, such as the exchange of money for goods, is enough to bring the default contract into play.

The real complexity is when a specific contract is drawn up because no such contract may break any other law, and there are certain entitlements that one cannot sign away under contract (in employment contracts one cannot sign away the minimum holiday period, for instance), and any such contract becomes unenforceable if they contain such illegal clauses.

As one might imagine this becomes a common tactic for the less than ethical who think they may want to break a contract, they build ina clause that deliberately violates law, thus making the contract itself illegal and unenforceable.

Similarly if no specific partnership agreeement is drawn up and signed, a default partnerhip agreement is applied when a partnership is formed.

(At least that's how I understood it from the brief training I was given, and IANAL also.)