Like others across the country last week, a Washington, D.C., couple and their housewarming guests buzzed about the Supreme Court's ruling that legalized gay marriage in all 50 states. But they were far more interested in Chief Justice John Roberts' dissent than the majority opinion that made same-sex marriage the law of the land.
The couple – a husband and his wife – are polyamorous, and had just moved in with their girlfriend. And in Roberts' dissent, they saw a path that could make three-way relationships like theirs legal, too.
“Did you see we were mentioned by Roberts?” the husband beamed as he welcomed guests the day after the ruling. The chief justice wrote that polygamy has deeper roots in history and that the decision allowing gays to marry "would apply with equal force to the claim of a fundamental right to plural marriage.”
“If the majority is willing to take the big leap," he added, "it is hard to see how it can say no to the shorter one.”
An attorney at the housewarming who works at a prominent Washington law firm tittered at the thought of repurposing gay rights arguments to sue for government recognition of plural marriages. It would be a lot of fun, he told his host, if he wasn’t saddled with corporate law work.
Roberts' analysis wasn't unique. The suggestion previously was made by judges on the U.S. Court of Appeals for the 6th Circuit, who in November wrote, “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.”
Some gay marriage supporters see the analogy as far-fetched. But for polyamorous advocates it’s welcomed as a potential boost for future legal efforts.
Some advocates believe Roberts' dissent will prove as useful to the polyamorous movement as dissents written by Justice Antonin Scalia in gay rights cases were to the same-sex marriage movement. In Lawrence v. Texas, a 2003 case, and in 2013's U.S. v. Windsor, Scalia warned his peers were laying the groundwork for universal recognition of same-sex marriage, which other federal judges pointed to in their decisions knocking down state bans on gay marriage.
"I do think the dissent by Roberts provides a legal foothold for people seeking polyamorous marriage rights," says Diana Adams, a New York attorney who specializes in nontraditional family law. "As Roberts points out, if there's going to be a rejection of some of the traditional man-woman elements of marriage... those same arguments could easily be applied to three or four-person unions."
Adams says she's heard chatter of looming lawsuits now that the same-sex marriage issue has been resolved. She personally is interested in helping extend co-parenting arrangements for three or more people to benefit same-sex couples who cannot reproduce with each other, and she says such cases could ultimately break ground for polyamorous families.
Robyn Trask, the Colorado-based executive director of Loving More, a polyamory support organization, says she believes Roberts’ dissent will prove prophetic.
“I don’t think it’s going to be as far in the future as people think,” she says.
Trask says the marriage issue currently is “debated within our own community, similar to the gay community – there are people who don’t believe we should go after plural marriage, and there are those who do.”
A significant majority within the community appears open to the idea of marriage with multiple partners should it become legally possible. In a 2012 survey, Loving More asked more than 4,000 polyamorous people and found 66 percent were open to plural marriage, with 20 percent unsure.
There are many practical reasons to marry, Trask says, including immigration and medical decision-making rights. She has personal experience with both, marrying a Japanese partner in the late 1980s so he could remain in the U.S. and struggling for the right to speak for a female partner while she underwent surgery.
She says she once knew a married American couple who divorced so one could remarry a Canadian partner who wanted to live in the U.S. Another three-person relationship featured an American, a Canadian and a Mexican who wished to live together.
Despite the real-world benefits of legal marriage, Trask says many people living in polyamorous relationships “are in the closet and being very careful,” with a large number feeling it’s more important to protect their employment, housing and children than to lead the charge for marital rights.
But she says polyamorous partners, particularly younger ones, are increasingly “out” about their lifestyle, and believes change will come with greater swiftness than for gay people. "They blazed the trail, if you will,” she says.
While the public may imagine multi-spouse marriages consist mostly of wealthy men and a harem of women, Trask says her own life is more typical, and far less glamorous. She’s been with her husband, with whom she lives, for 10 years, has been with another male partner for 31 years and a third man for 12 years.
Anita Wagner Illig, a longtime polyamory community spokesperson who operates the group Practical Polyamory, says she has long believed that legal success for same-sex marriage would open the door to legal polygamy. Now, Illig says, community leaders can more openly say so.
“The conservatives took this up with great fervor,” she says. As the same-sex marriage debate unfolded, she adds, some polyamorous people “thought it was better to let [gay rights advocates] get a chance to get that done. It was in our best interest for them do so anyways.”
Illig says one hindrance for legalized polygamy will be a lack of funding; unlike the gay-rights movement, there aren't many deep-pocketed organizations willing to finance or support an expensive court challenge. Another will be unique issues presented by multispouse marriages, such as how to equally distribute Social Security payouts or fairly divide property in a divorce.
Still, she insists polygamy is positioned to become the future of marriage.
“It’s not going away. There are those for whom traditional marriage doesn’t work,” says Illig, who lives with her husband in Maryland; she has a boyfriend and he has a girlfriend.
Trask and Illig say the size of the polyamorous community appears to have grown significantly in recent years alongside greater public awareness. Most, they say, are secular, not religious.
Some Muslims and fundamentalist Mormons have multiple spouses, as do immigrants from certain countries in Africa. These communities generally avoid attention, through that’s changed somewhat with TV programs such as the reality show “Sister Wives,” which follows a family of likable Mormon fundamentalists.
The four-wife, one-husband Brown family featured on “Sister Wives” – only two of whom are legally married – in 2013 won a federal court ruling that struck down a Utah law criminalizing cohabitation among multispouse families. After a significant delay, the state of Utah decided to appeal the ruling.
Jonathan Turley, a George Washington University constitutional-law professor who represents the Browns, notes that case is not asking for marriage rights, only an end to criminal laws against of polygamous families in Utah – where the once-common practice among Mormon pioneers was banned by the church and government more than 100 years ago, sparking breakaway denominations that continue to encourage plural marriage.
“Much of the language of the majority clearly resonates with our arguments against the criminalization of private consensual relations,” Turley says, referring to Justice Anthony Kennedy’s majority opinion in favor of same-sex marriage. “The important thing, though, is to recognize that the question in our case is closer to the issue resolved by the Supreme Court ten years ago for gay couples in striking down the criminalization of homosexual relationships.”
It’s unclear how many Americans live in polyamorous relationships. What is clear: Most Americans do not approve of polygamy, which until recently has been more closely associated with cults rather than telegenic reality TV stars and relatively normal neighbors.
A poll conducted by Gallup in May found just 16 percent of Americans believe polygamy is morally acceptable. That’s much lower than the 63 percent approval for same-sex relations, though support is on the upswing. In 2006 only 5 percent of respondents told Gallup polygamy was morally acceptable. By contrast, a majority of the public doesn't see anything wrong with same-sex marriage.
Yet public support may not be necessary for steps to be taken toward legal recognition. Long before the public pivoted to majority support for same-sex marriage, state courts mandated marriage rights for gay men and lesbians first in Massachusetts – in 2004, when national public support for it hovered just above 30 percent – then in California, Connecticut and Iowa.
The states that legalized same-sex marriage through the legislative process or by voter initiative followed the initial four that came from state court action. After the Supreme Court’s 2013 decision that the federal government must recognize state-legal marriages, win after win came in federal courts.
It's unlikely legal polygamy will find an elected official to champion the cause. In an illustrative exchange, Libertarian Party presidential candidate Gary Johnson, a former New Mexico governor, said in 2012 he philosophically believed in legal polygamy, then begged reporters not to print that. “If the headlines out of this meeting is that Johnson supports polygamy, that’ll be the end of my campaign,” he pleaded. Johnson made no similar request for his description of how it felt to snort cocaine.
Adams, the New York attorney, says an explosion of media interest in polyamorous families hints change will come – so long as polyamorous people continue to step out of the shadows – and she hopes in the meantime states will expand domestic partnership laws.
"The same-sex marriage movement has really broadened our perspectives on what family means, what love means," she says. "There's quite a strong possibility in the next 10 or 20 years we'll have a very different idea nationwide of what it means to be in a committed family."