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Friday, October 21, 2016

When the U.S. Supreme Court ruled that states must recognize same-sex marriages, dissenting Chief Justice John Roberts wondered whether polygamy will be next. Some legal scholars have responded that yes, the arguments for gay marriage could apply to relationships among more than two partners, as well.

William Baude, a law professor at the University of Chicago, wrote, “By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry.”

There’s a more basic question here: Why is government in the business of conferring a right to marry at all? What is it about this thing called marriage that justifies a grab bag of legal benefits? That would include tax advantages, inheritance rights, hospital visitations, and the ability to make end-of-life decisions for one’s spouse.

The recent Supreme Court case disposed of the idea that only a man and woman can provide a stable home for children. Many gay couples do a better job of raising children than some heterosexual pairings. And in any case, children have never been a requirement for marriage.

Baude inadvertently points to the illogic of tying any benefits to state-sanctioned marriage by using the word “polyamorous” in referring to polygamous relationships.

Merriam-Webster defines polyamory as “the state or practice of having more than one open romantic relationship at a time.” It makes no sense that having a romance (or two or three) should entitle one to leave an estate to a partner tax-free or get in on another’s company health plan.

We can be totally in tune with the notion that such benefits help families. And we can agree that children tend to be better off in households headed by devoted parents.

Marriage is a wonderful institution, but it does not follow that government should be defining it. Let ministers, priests, rabbis, imams, and ship captains tie the marital knot. And have government recognize civil unions only.

Civil unions need not be between romantic partners. The pairing could be close friends, cousins, office mates. And of course, it could be a church-sanctioned spouse.

Sorry, polygamists, only one civil union partner at a time. If your lawyers should design plausible legal group arrangements, we’ll reconsider.

At the time of the high court’s decision, Roberts opined that “people of faith can take no comfort in the treatment they receive from the majority today.”

In an ideal world, the opposite would be true. Religious authorities would have greater control over the terms of holy matrimony. They would control the definition of marriage and decide whom they will or will not join. More than one clergyman has confided to me that he would just as soon not be conferring legal benefits when he marries people.

The Catholic Church does not countenance divorce, and an annulment is difficult to get. The Church makes its rules. Other faiths make their rules according to their creeds. The state should have no business here.

If a couple want to register their silver pattern and have a guru marry them at dawn on Mount Tamalpais, that should be their choice. If they want to be partnered with the legal rights of a civil union, as well, they should be able to find a bureaucrat in downtown San Rafael to do the paperwork.

Everyone would win. People of faith could continue to enter into marriages with, if anything, more powerful rules. Those wanting a less intensely religious union could get one. And best of all, we would end the odd custom whereby government grants financial and emotional advantages on the basis of an implied romance.

Follow Froma Harrop on Twitter @FromaHarrop. She can be reached at [email protected] To find out more about Froma Harrop and read features by other Creators writers and cartoonists, visit the Creators Web page at

Photo: Ted Eytan via Flickr

  • Robert Eckert

    You are profoundly confused about what the word “marriage” means. It refers, precisely, to the LEGAL institution, for which you use the awkward neologism “civil union”. If no legal institution exists, you have no protection for your right to take care of and share property with your loved ones. The religious institution is “holy matrimony” and, indeed, this is a matter of legal indifference. You can hold a religious ceremony, or just go to the justice of peace; the government does not and should not care.

  • Dark Star

    I’m afraid I must take serious umbrage with this section:

    >> The Catholic Church does not countenance divorce, and an annulment is difficult to get. The Church makes its rules. Other faiths make their rules according to their creeds. The state should have no business here.

    I repeat

    >> The state should have no business here.

    This is EXACTLY where the state has business – you would allow religions to make-up rules that are arbitrary and BINDING on people? (if I’m reading you correctly, I address the other possibility below)

    It is RELIGION that has no business here, this is contract law. Religions can tell people what they THINK they OUGHT to be doing but has ZERO business telling people what they CAN and CANNOT do (other than it’s ability to influence the population as a whole on equal footing with every other idea and thereby influence the body politic – where it is properly limited by the Constitution).

    The Catholic Church can ONLY say you are or are not welcome to attend their churches – that’s it. And if we did this, then what would be a substantive argument against Muslims pleading that Sharia law should be binding on Muslims in the US? Clearly religions can define binding law for their adherents, why just for marriage? And who gets to define when you can leave a religion? Congratulations, you have opened your 50 gallon drum of worms by beating down the wall of separation with it.

    And if you don’t mean to make it Binding then it is utterly useless and you are right back to where we are today — the Church is ceremonial and the State makes the rules.

    Calling it a ‘civil union’ is also a move based in bigotry. How about we keep secular marriage and you can call religious marriage something else, ‘servitude’ or something – we will make a law that says they cannot call it ‘marriage’. Sound fair? No? Well, neither is the reverse. You are, again, trying to privilege religious institutions.

    You do realize that marriage existed before Judaism or Christianity right? They had no hand in inventing the concept – they do not own it and have no rightful claim to it. In fact, the origins of marriage are fairly ugly – children were basically sold into marriage, with no say in it, in exchange for binding families together for power or land.

    Early religious marriage had the women becoming the PROPERTY of the man even to the point that he could have forced sex with her and beat her without consequence. The woman could also be killed if she wasn’t a virgin in some cases.

    That is “traditional” marriage, but instead people use “traditional” marriage to mean the highly altered version they just happen to prefer, usually the one that contains the bigoted exclusions they happen to prefer.

    You bet your donkey we’ve changed the definition of marriage over the years.

    I do agree with one part — while i have No issue with polygamy or polyandry itself (and it was very ugly US religious persecution of Mormons that made it illegal — what US should have done is implement better age of consent laws and ENFORCE them) I agree that the contract between multiple people becomes exponentially more complex, especially dissolution of those bonds. That is a reasonable basis upon which to consider it a special case – however, as you suggested, if a group wishes to come up with a contract that meets contract law standards then the US should not stand in their way — I just don’t see how we could have a generic template that fits all situations — it’s difficult enough to handles the vargarities between just two people.

    These are not insoluble issues but they must be overcome before we could re-institute multi-way partnerships in the US — despite the vulgar rationale upon which the prohibition was based.

    Human interactions are governed by the principles of the exchange being Empowered, Informed , and Consenting. When those principles are followed to the highest degree then you have the most ethical interactions. When they are violated you have unethical and often criminal interactions. Look at almost EVERY law and you can find those principles. Be it murder, theft, fraud, contract law — almost everything boils down to these core principles.

    In the past, US law has often violated these core principles (slavery, anti-miscegenation, anti-women’s rights, anti-gay rights) to our ultimate detriment and it has taken hundreds of years and we are still fighting the bigotry enshrined in our Nation of ‘men created equal’.

    Marriage has been formed around the needs of the People and it fits pretty well. People who are close want to have things like visitation rights in the Hospital without getting lawyer involved in EVERY interaction people have. It’s an absurd idea to view this as merely being merely about taxes (hint: you are free to adjust the married tax rate independent of the question of marriage).

    And since you don’t seem to be aware of it there is often a marriage penalty from a tax perspective where both spouses are working because the second income is taxed wholly at the higher rate and the increase deduction and lower tax bracket doesn’t offset the income.

  • Daniel Jones

    Froma, you’re dead wrong on this.

    Given all the inanity and insanity of religious attitudes toward taboo groups, the absolute last thing we need is for the wing-nuts of whatever faith having power over marriage.