Hi guys, love the show. I was watching a MarriageSchmarriage ("MS") call from June wherein Matt said he hadn't come to a conclusion on polygamy. MS asked what made polygamy different from same sex marriage such that the same principles could not be applied. Well, allow me to submit the following.
Marriage is a set of rights and responsibilities entered into by two people. These include:
-The right to make medical decisions on behalf of your spouse.
-The right to inherit community property and a large chunk of your spouse's separate property.
-The presumption that children born during the marriage are parented by the spouses.
-The right to child custody and visitation in the event of divorce.
-Social Security, private pension, veterans, and other survivor benefits.
-Legal status with stepchildren.
This list is obviously non-exhaustive; however, it does illustrate how marriage is essentially a two-person enterprise. When a marriage license is issued to two persons, regardless of gender, their legal status changes, but in clearly ascertainable ways. If a marriage license were to issue to three persons, their legal status would not be clear. In a marriage of three or more persons, who makes the medical decisions for a disabled spouse? Who inherits the spouse's separate property? When a child is born who is the father and who is the mother? In the event more than two parents are recognized, who makes the decisions regarding the child's welfare? In the event of divorce, how is custody determined? Can a person divorce one partner but keep the others? Under what circumstances can a marital group divorce one of its members? Can a person belong to more than one marital group?
It is evident that a series of amendments, side agreements, and powers of attorney are necessary to clarify the rights and duties of the parties to a polygamous union. Polygamy as a model simply does not fit within the current legal framework for marriage. Marriage law, as it stands, is a two person enterprise. It sets up a series of default rules which can apply to same-sex couples just as easily as opposite-sex couples. There are no readily apparent default rules for polygamous unions.
This is not to suggest that polygamous unions should remain legally unrecognized, but it does imply that a set of one-size-fits-all defaults is not the answer. Until the contours of the default polygamous relationship are defined, recognizing polygamy in the way we recognize two-person marriage is not possible.
