On October 6, the Supreme Court denied review, without comment, of all seven petitions addressing state court decisions to overturn same-sex marriage bans. The practical implication of these decisions is that same-sex marriage will become law, piecemeal, through state court decisions.
This outcome was not unpredictable; in an interview with the Wall Street Journal on September 17, Justice Ginsburg predicted that “cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing.” She said “there will be some urgency” if that circuit allows same-sex marriage bans to stand. Such a decision would “run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner.”
In other words, the reason for the Supreme Court’s silence (and tacit approval) might be the clear trend of public opinion supporting same-sex marriage, evidenced by the overall agreement among state courts.
This interpretation reinforces something that law and society scholars have studied in other contexts: the relationship between legal and social mobilization for rights is spiral-shaped. Law can sometimes push society, and changes in the zeitgeist can produce legal change in their turn.
This approach offers considerable hope to a group of people whose rights are not addressed by the latest developments: polyamorous activists. Polyamory is the practice of having multiple romantic relationships, simultaneously, with the knowledge and consent of all parties. Polyamorous relationships can take many forms, from committed triads to more fluid networks of partners and lovers.
Shortly after the first San Francisco round of same-sex marriages in 2004 I interviewed polyamorous activists, who at the time expressed little interest in legal activism. This was partly out of deference to the same-sex marriage struggle. More recently, however, with the success of marriage equality, the community is exhibiting more interest in legal recognition of polyamorous relationships. Some of this renewed interest in legal mobilization is inspired by same-sex marriage, and some of it relates to the increased public visibility of polyamory; nonmonogamous relationships have been highlighted on several popular television shows, like Big Love, Sister Wives, and Polyamory: Married and Dating.
But while these developments open the door to legal recognition of multiparty relationships, they also create considerable challenges for polyamorous activists.
Social movement scholars usually assume that struggles for legal rights are incremental — that is, progress for a given movement increases the chances that the movement that follows it will be successful. But sometimes, this “spillover” effect is more complicated. As Gwendolyn Leachman and I argue in a longer piece, a big part of the success of same-sex marriage can be attributed to the change in the character of the struggle. In the 1970s, gay liberationists sought marriage not as a realistic option, but as a form of symbolic protest against the oppression of heteronormativity, which for them was represented by marriage. While “rogue” marriage cases continued to hit the courts on occasion, the movement overall turned to other, less extreme forms of legal recognition: antidiscrimination lawsuits, child custody cases, and the like. It’s not so much that the gay rights movement was too radical for marriage; it’s more accurate to say that, at the time, marriage was too radical for them as an attainable goal. It was only after the surprising legal success in Hawaii that activists turned their attention again to marriage in a serious way. By then, public opinion in favor of same-sex marriage had begun to change, and its proponents presented a mainstream, “just-like-you” version of marriage to a less-threatened mainstream public.
In the recent Supreme Court cases, U.S. v. Windsor and Hollingsworth v. Perry, this mainstream argument relied, in part, on differentiating the nonthreatening, hardly-radical character of same-sex marriage from other relationship structures, including nonmonogamous relationships. In one of many examples, Ted Olson, arguing on behalf of same-sex marriage activists, explicitly distinguished the two, saying that “the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if a state prohibits polygamy, it’s prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.”
Clearly, polyamorous activists are not solely benefitting from the success of the marriage equality struggle; they also have to overcome the hurdles that success has created for them. If their success is to follow a similar pattern, there may be other victories, in areas of adoption, custody and employment discrimination, that need to be won first. And a crucial component of their struggle’s success would be a significant improvement in public opinion of nonmonogamous relationships, which is complicated by anti-Mormon and anti-Islamist sentiments. The most important lessons that polyamorous activists can learn from same-sex marriage proponents is the need to address several different fronts, courting public opinion and legal mobilization simultaneously, as well as the immense value of the passage of time in bringing about broader tolerance.
Hadar Aviram is a Professor of Law at UC Hastings College of the Law and the co-director of the Hastings Institute for Criminal Justice. She is a member of LotL’s Advisory Panel.
For more on the topic of polyamorous relationships and the law, listen to this previous episode of our podcast.