Noli Irritare Leones

Debate over same-sex marriage continues to get weird, and both Family Scholars and Marriage Debate proliferate threads on polygamy. Much of the debate goes something like this:

Side A: The slope is slippery! Aack! The slope is slippery! There is no way you can possibly legalize same-sex marriage without also legalizing polygamy!

Side B: Legalizing polygamy would be way complicated. Just look at all the change in the law it would require. The slope isn’t slippery at all, because there’s a huge difference between making a simple change in the law and making a complicated one.

While I’m going to argue for side B in this post, I want to put my caveats up front. I’m dubious about most slippery slope arguments most of the time. Sure, we all sometimes attend to slippery slopes; we sometimes avoid choosing A because it might make it easier to get suckered into B (and because, incidentally, we don’t care enough about the modest benefit of A to be willing to take the modest risk of B). But basically, slippery slopes aren’t all that scary. As Real Live Preacher points out in another context, we live our lives on one slippery slope after another, and manage not to slide to the bottom of all of them. So just saying that you can make an argument for B that derives from some argument or other for A isn’t really enough reason to prove that this slippery slope is a vital danger.

That said, there’s something unsatisfying to me about “it’s way too complicated” being the key argument against polygamy. It’s true – legalizing polygamy in the US would create more legal complications than legalizing same-sex marriage – but it still feels weird. I’m happier with arguments that say why a given change in marriage law is or isn’t good policy, like Jonathan Rauch’s National Journal article about why polygamy would in principle be an unfortunate change in marriage law. As Jon Rauch puts it:

For reasons that have everything to do with its own social dynamics and nothing to do with gay marriage, polygamy is a profoundly hazardous policy.

To understand why, begin with two crucial words. The first is “marriage.” Group love (sometimes called polyamory) is already legal, and some people freely practice it. Polygamy asserts not a right to love several others but a right to marry them all. Because a marriage license is a state grant, polygamy is a matter of public policy, not just of personal preference.

The second crucial word is “polygyny.”

I happen to think that Jon Rauch is right that, in practice, most polygamous marriages would be polygynous (if nothing else, I think the polygynous fringe Mormon groups and immigrants from traditionally polygynous cultures would outnumber people who wanted to try other “poly” combinations). And I also think that he’s right that the social effects of that shift would suck. But I’m not going there in this post. Instead I’m going to talk about the various ways in which our law assumes one husband and one wife, and the ways in which those assumptions would muck things up if, say, a judge suddenly ruled tomorrow that people in California get to marry as many people as they please. Marriage isn’t just about law; it’s also a matter of culture (and I’ve blogged before about the effect of monogamous vs. polygamous cultural norms). And, of course, if we really, really wanted to, we could change the laws to allow, say, group marriages of the sort Heinlein envisioned in his science fiction novels. But such a change would take extensive work by the legislature, not a simple ruling by a judge.

I’m not a lawyer, nor do I play one on the net, but I do know that marriage law includes many rules: How does marital property work? What is the effect of marriage on inheritance? How easy is it to get a divorce? How is property divided, and how is child custody determined, in the event of divorce? What happens when my husband and I disagree about some major financial decision, such as whether to refinance the house, or whether to take out a loan? If Joel’s in the hospital and unable to speak for himself, who gets to make decisions for him? Now, let’s assume that, tomorrow, a California court rules that it’s discriminatory for marriage to be monogamous only, and simply eliminates the rule that you can’t marry if you already have a spouse. Assume that everything else about California marriage law remains the same.

The first question that arises is, do I have to consent for Joel to marry someone else? Does he have to consent for me to marry someone else? I’m going to assume, in this example, that the answer is no; the judge simply allowed chaos and lets each of us marry as many times as we darn well please. If the answer is yes, we do need to consent, then you need to figure out how that works as the number of spouses increases (does each spouse consent separately, or do all of everyone’s spouses form some sort of marital corporation, and take a vote?). But I’ll assume no, just to show how marriage gets screwed up if your spouse can form other marriages without your consent.

Marriage property: Under California law, nearly all property acquired during a marriage is community property. There are a few exceptions: inheritance, gifts, property owned before the marriage, and income from separate property are all separate property. Debts are also effectively community debts; we may both have separate credit cards, but if one of us defaults on a debt, the creditor can come after both our community property.

Now, if Joel can take another wife, or several, and if community property law remains the same, then everything I earn is now also community property of the new wife, right? She can earn less money than me, charge up credit cards that I didn’t want, and the money to pay for that can come out of my paycheck. And, given that I was never in love with her, and didn’t necessarily want her in the marriage, it hardly seems fair that I’m now obliged to pay her bills.

Inheritance: If I die without a will, or if Joel dies without a will, our inheritance is governed by laws regarding intestate succession. According to Findlaw, the 1990 UNIFORM PROBATE CODE provides for division of property between the spouse and other possible heirs (with different adjustments in different states). Let’s say that Joel and I have two children, and he also has a couple of children with another wife. Joel and I are in the same accident, and I die in the hospital a few days before he does (so that inheritance of my property takes place before inheritance of his property). Neither of us has a will. First, here’s what happens to my property:

The surviving spouse is entitled to the entire net estate if the decedent is also survived by children who are all children of the decedent and the surviving spouse.

All my children are Joel’s children, so he gets all my estate.

Now, here’s what happens to his property:

If the decedent is survived by descendents who are also the descendents of the surviving spouse, and by descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $150,00 of the net estate plus one-half of anything exceeding that amount.

So, wife number two gets the first $150,000 of Joel’s net estate (which includes all my net estate), plus half of everything exceeding that amount. Not a whole lot is left to go to my children, who would have inherited all of my estate after we both died, if it weren’t for that pesky second wife.

At this point, if I’m a relatively high earning woman, marriage starts to look like a serious liability when it comes to providing for my kids. Maybe I’d be better off just shacking up with my kids’ father; that way at least my income reliably stays with my kids.

Health care: Right now, if Joel’s in the hospital, I get to make all his medical decisions if he’s unable. If his mother disagrees and takes it to court, the courts will almost certainly take my side. If, on the other hand, Joel has another wife, well, we get to fight it out over who makes his decisions. More cases wind up in court, because it’s not so obvious which of us should prevail.

Financial decisions: There are certain debts we can each run up unilaterally. Individual credit card offers come in the mail all the time (and I diligently cut them all up into very small pieces). Others, we both have to sign for. If I buy a car, or if I refinance the condo, we both sign. If I take another husband (and, heck, since we’re in legal fantasy land, how about we have same-sex marriage too, and I also take another wife), and Joel takes another wife or two, how many people have to sign to refinance that condo? The two of us, since we were the only ones married when we bought it? Everyone, since community property laws sort of apply to everyone? What happens if we disagree?

Divorce: Under California law, I can apply for a no fault divorce at any time, but need to wait at least six months before I can actually be divorced. Sometimes divorce actually takes much longer, if one partner has no interest in having the divorce go quickly. Polygamy would both complicate and lengthen the divorce process (since it becomes more complicated to determine who exactly owns what property and how the shares divide) and make some people more desperate to divorce quickly, to get away from that new spouse (and liability for that new spouse’s credit cards).

Child custody: I don’t think I want to touch this one.

OK, so let’s say we do want polygamy, and we want to address these issues somehow. What are our options? Let’s look at several scenarios.

The Handmaid’s Tale scenario: In this scenario, polygamy is made to work by assigning people different roles. The husband may be presumed to be head of the family, and that solves one set of problems getting a large polygamous household to agree. The wives may be unequal, so that one head wife gets to make decisions for others. And of course only men get multiple wives. Drawbacks are, first, that you’d need major legal overhaul of multiple state constitutions, since as it stands you can’t treat men and women so unequally (but since we’re in legal fantasy land, I’ll just assume we do that and go back to the dark ages on women’s rights), and, second, that it’s manifestly unjust. Note, though, that if you did make such legal changes to make polygamy work, you’d also change the rules for everyone’s monogamous marriage.

Polygamy light: In this scenario, you make polygamy work by making marriage do less. You could, for example, have less community property, and less spousal liability for debts. You could shift inheritance law for people who die without a will to be friendlier to children and less friendly to spouses. And you could defend speedy unilateral no fault divorce vigorously. In this way, co-spouses have less ability to drive you to bankruptcy, but the cost is that everyone’s monogamous marriage got a little weaker. And people who took risks, such as taking time out of the job market to raise kids, based on the old marriage rules are screwed. Do we really want the world where husbands’ and wives’ property is presumed separate?

Parallel marriage contracts: In this world, monogamous marriage retains the same rules, but people get to form polygamous marriages in parallel, sort of the way some states allow a separate “covenant marriage” where it’s extra hard to divorce. So, for example, let’s say that, in order to convert your monogamous marriage to a polygamous one, you first need to both consent in writing and second to file a set of polygamous marriage by laws, sort of the way you do now to form a corporation. You’d probably need forms covering all the different things that would need to be addressed in the way of property division, etc., and there could be lawyers who specialized in such things. And, if we really, really wanted polygamy (unlikely), I suppose this would be the most tolerable way to do it – at least you don’t muck up everyone else’s legal contract (what would happen to cultural norms is another matter), and you guarantee that only the people who wanted polygamy get stuck with it. It’s hard for me to see why this change would be an actual benefit, though. (And at this point, I guess, we go back to Jon Rauch’s arguments about how polygamy would really play out in practice.)

This entry was posted on Saturday, April 1st, 2006 at 10:56 am and is filed under Marriage. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.