Across the United States, polyamorous adults suffer discrimination due to their being in non-monogamous relationships. Does the government have an obligation to protect all relationships among consenting adults? The following paper presents an argument that relationships among polyamorous adults should be granted the same legal recognition as monogamous people to alleviate the burdens of discrimination they face. Currently, the most expedient step towards harm-reduction in this regard is through the creation of domestic partnerships at the municipal level. This must occur as a first step to protecting the rights of consensually non-monogamous people themselves, and the foundational right of freedom for consenting adults to form relationships as they please.

Introduction

In the wake of Obergefell v. Hodges, it is tempting to believe that all consensual relationships among adults have acquired the benefits of legal recognition.¹ However, despite significant strides made towards relationship equality, I posit the laws of the United States fail to deliver what is owed to adults in consensually non-monogamous (CNM) relationships. Members of the CNM community are largely denied protection, and as a result members of such unions experience harm–including workplace and housing discrimination and being denied child custody.

In this paper, I advocate for the creation of legally recognized polyamorous domestic partnerships. I argue the government should protect individuals' freedom to form relationships – so long as they do not harm others. More specifically, I advocate for the removal of current barriers preventing the legal recognition of CNM relationships at the municipal level. This will allow the creation of legally recognized domestic partnerships among more than two individuals by local governments–an essential step to alleviating the harms faced currently by members of the CNM community.

I first explicate the current state of law regarding legal recognition of CNM relationships. Following this, I highlight the urgency of this issue by revealing the discrimination faced by CNM individuals. Later, I reveal the merits of domestic partnerships as an expedient step towards harm-reduction. Then, I establish that polyamorous relationships do not cause harm towards others and conclude by advocating for their legal recognition.

Legal Barriers to the Creation of Consensually Non-Monogamous Domestic Partnerships

As it stands, state governments in the United States largely prevent the creation of domestic partnerships for members of the CNM community at the municipal level. This is so for two reasons: the legal recognition of polyamorous relationships is criminalized by states, and state governments limit the ability of local governments to pass or uphold CNM domestic partnership ordinances.

The former of the two is reflected in the following: All fifty states and Washington, D.C., prohibit polygamy or bigamy in their statutes or constitutions. California, Colorado, Washington, and Washington, D.C., added domestic partnerships or civil unions to their definitions of statutory bigamy. Forty-eight states do not discuss domestic partners in their antipolygamy laws, but multiple-partner ordinances may clash with these statutes if the rights they create are not sufficiently distinguishable from marriage.²

This summary of the state of the law reveals the widespread criminalization of polygamous and bigamous marriage at the state level. Furthermore, it reveals such criminalization either extends to CNM domestic partnership ordinances, or has the potential to if they are not, "sufficiently distinguishable from marriage," in the majority of states.³ From this, it is evident that the criminalization of polygamy and bigamy at the state level often also prohibits the creation of CNM domestic partnerships at the local level.

Furthermore, state legislatures can prevent the creation of CNM domestic partnerships by directly criminalizing polyamorous domestic partnerships. For example, "before municipalities pass polyamorous ordinances in D.C. and the three states that make multiple-partner domestic partnerships a felony, decriminalization may be necessary."⁴ Similarly to statutes banning polygamy and bigamy, the criminalization of polyamorous domestic partnerships of course prevents the creation of CNM domestic partnerships.

Criminalizing the legal recognition of polyamorous relationships is not the only legal barrier to the creation of CNM domestic partnerships. State governments also limit the authority of local governments which creates a significant hurdle to legally recognizing CNM partnerships. As noted in the following:

Most states, including Massachusetts, have enacted "home rule" amendments or statutes, granting local government subunits the power to initiate legislation not specifically authorized by the state legislature. In contrast, some states have Dillon's Rule, which requires the state legislature's express permission as a prerequisite to local action like passing domestic partnership ordinances. Although local governments in home rule states have greater autonomy, their authority varies across and within those states based on unique home rule provisions. Consequently, determining if a local government can enact an ordinance requires checking the specific statute for that entity's power in relation to the state.⁵

Here, it is revealed that the autonomy states afford to local governments classifies municipalities as falling into one of two categories. The first of these is municipalities operating under Dillon's Rule. In the thirty-nine states that employ Dillon's Rule, local governments' ability to legally recognize CNM partnerships is entirely contingent upon approval from their state legislature.⁶ Requiring approval from the state government to pass ordinances limits the power of local governments. This is so because a state government can trump the desire of a local municipality to create legal status for CNM relationships by withholding the necessary permission. As a result, employing Dillon's Rule can be used as a tool in the arsenal of preventing the creation of CNM domestic partnerships at the municipal level.

Similarly, the second category of municipal authority–Home Rule–erects barriers preventing the legal recognition of CNM domestic partnerships. In the thirty-one states which provide for Home Rule in their constitution, and the eight which authorize it through statute, local governments have, "the power to initiate legislation not specifically authorized by the state legislature."⁷ However, despite Home Rule granting municipalities this power, state governments may still disallow such municipalities' CNM domestic partnership ordinances. This occurs by state governments passing legislation which bars the creation of such unions.

For example, Article XI section 5 of the California state constitution includes a provision which allows for local governments to create laws, "in respect to municipal affairs."⁸ However, this authority granted to these municipalities is not absolute. This is exemplified by the California Supreme Court's ruling in In Re Lane: "[t]he Penal Code sections covering the criminal aspects of sexual activity [including bigamy] are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject."⁹ Despite being granted authority to regulate domestic partnerships, a local government's power was superseded by the California Supreme Court. This ruling reveals that authority granted by Home Rule provisions is weak because it can be superseded by the state.

Home Rule municipalities subject to the will of state courts and legislatures can face barriers when attempting to legally recognize CNM relationships. This is so because members of CNM partnerships cannot truly put faith in legal recognition at the municipal level due to the fact that it may be invalidated by state courts or legislatures.

In summary, there are several legal barriers to the formal recognition of CNM relationships at the municipal level. Among the most pressing of these are the criminalization of polygamy or polyamorous domestic partnership. Furthermore, state courts and legislatures restricting municipal governments from legally recognizing polyamorous relationships creates another barrier. Overall, because municipalities are subject to the will of the state government, their ability to pass CNM domestic partnerships ordinances is limited without approval–or absence of disapproval–from the state.

Discrimination Faced by the Consensually Non-Monogamous Community

I have established that unlike their monogamous counterparts, members of the CNM community are denied the legal right to marriage or domestic partnership. This inhibits the well-being of such individuals because the government itself discriminates against CNM people, and because it fails to protect CNM people from private citizens who would victimize them for their preference of relationship style. In the following section, I illuminate the areas in which polyamorous people face discrimination to motivate the enactment of legal protections. These areas include the workplace, housing, child custody, and more. The patterns of discrimination reflect a lack of legitimacy afforded to CNM partnerships. Such discrimination harms the, "4 to 5 percent of people in the U.S. [that] are in a consensually non-monogamous relationship."¹⁰

First, the lack of legal protections offered to people in CNM relationships results in inequality and discrimination in the workplace. Such individuals do not have access to shared resources granted to legally recognized monogamous couples. "Benefits like health insurance, life insurance, family leave, bereavement leave, relocation assistance, and pension benefits are central to the livelihood and well-being of employees, their partners, and their legal dependents," but are not available to people in CNM relationships.¹¹ Furthermore, there is anecdotal evidence that polyamorous people face termination as a result of their engaging in CNM practices.¹² These examples of discrimination could be alleviated by legal recognition of polyamorous couples. This is so because it would allow the sharing of employment benefits among partners, and lay the groundwork for making polyamorous practices legally protected–and consequently not grounds for termination. Furthermore, legal recognition could offer CNM unions legitimacy that would serve to reduce stigma against them and the discrimination which results from it.

Denial of resources to members of polyamorous partnerships is not limited to the workplace. It is also evident when examining housing discrimination against CNM people. Most states lack, "legal provisions protecting people from discrimination based on marital status, meaning landlords may legally ask questions about [potential tenants'] relationships and may refuse to rent," to them if they are unmarried.¹³ A handful of states–Alaska, California, Massachusetts, Michigan, and New Jersey–provide protections to unmarried partnerships, but for CNM people elsewhere in the U.S., housing discrimination is a very real threat.¹⁴ A potential remedy to housing discrimination looks like, "a city or county ordinance prohibiting discrimination on the basis of sexual orientation. Although usually passed to protect the housing rights of gay and lesbian tenants, most local laws forbidding discrimination based on sexual orientation also protect unmarried, heterosexual couples."¹⁵ By limiting housing discrimination, local ordinances would reduce harm and discrimination experienced by the CNM community.

Finally, child custody is particularly difficult for CNM partnerships given that, "courts in the U.S. and around the world have recognized the 'Rule of Two' [which states] children are allowed two legal parents."¹⁶ Some strides have been made, such as, "six states–California, Delaware, Maine, Vermont, Washington and… Connecticut–enact[ing] laws over the past decade expressly allowing a court to recognize more than two parents for a child."¹⁷ However, these laws do not guarantee the granting of parental status to all parents of a child of a CNM relationship. Furthermore, in areas without such laws, members of polyamorous relationships who want to attain legal status as caregivers for their children still face barriers.

This is largely due to the lack of legitimacy afforded to CNM relationships within the legal system: Many judges conclude, without supporting evidence, that people who engage in CNM are less moral, less stable, and less capable to care for children compared to monogamous people (e.g., V.B. v. J.E.B., 2012; Cross v. Cross, 2008). Further, some family courts have misunderstood polyamorous relationships, many assuming that long-term committed plural relationships are equivalent to "wife-swapping" or casual sex-only swinging. (Cross v. Cross, 2008; In re Aleksandree M.M., 2010). Ignorance about polyamory fuels systematic discrimination towards these families.¹⁸

The discrimination I have outlined thus far has harmful consequences beyond limiting the equal treatment of CNM people. In addition, "CNM-related minority stress [has been] positively related to increased psychological distress, such as higher self-reported depression and anxiety symptoms."¹⁹ The harms CNM people face as a result of being non-monogamous stems from discrimination faced because of their practicing CNM. Having revealed these real harms and their origin, I now defend the use of domestic partnership as a means to alleviate them.

The Merits of Domestic Partnerships to Achieve Harm-Reduction

I posit that the remedy to achieve legal recognition for polyamorous relationships is to improve legal transparency and remove current barriers in place. Specific to decriminalization, it is urgent that we clearly decriminalize CNM domestic partnerships and ensure that such partnership ordinances are allowed–even in states which criminalize CNM marriage. In regards to the restriction of local autonomy, municipalities should be granted an inalienable right to recognize adult CNM relationships. Following this, local governments should pass ordinances offering members of CNM relationships the option to form domestic partnerships to ensure the liberty of adults to form consensual relationships of their choosing.

To be clear, my support of legal recognition via domestic partnership is not as a preferred option to marriage, but an expedient first step to alleviate the current harms facing the CNM community. I defend this position by drawing on the progress generated by the creation of domestic partnerships between same-sex partners, and the potential for domestic partnerships to offer the same benefits to the CNM community.

Prior to the legalization of same-sex marriage, the general climate regarding legalization was fairly mixed with a slight trend towards a pro-legalizaition stance among people in the United States. According to Pew Research Center, "in 2001, roughly one-third of American adults supported gay marriage (35%), while 57% opposed it." A decade later in 2012, "Pew Research Center polling [found] slightly more support for same-sex marriage (48%) than opposition to it (43%)," indicating a gradual shift toward acceptance of same-sex marriage among Americans.²⁰ The slim majority in favor of same-sex marriage achieved in 2012 occurred about half a century after calls to grant legal status to our relationships occurred in the gay community. These are understood to have begun in the 1960s in the United States.²¹

In the time between the 1960s and the establishment of marriage equality, some strides were made towards protecting same-sex couples through the creation of domestic partnerships. These reduced harm by providing protection from discrimination and by providing legal legitimacy. While the general attitude towards relationships which are not heterosexual and monogamous has become more tolerant, the timeline for the legalization of same-sex marriage indicates that a years-long battle stands in the way of legalizing polyamorous marriage–if it is to be legalized at all. Because of the significant time barrier and the ongoing harm occurring currently, domestic partnerships offer significant benefits in the way of harm-reduction and by offering legal legitimacy.

With the theoretical harm-reduction benefits of legalizing polyamorous domestic partnerships established, I now offer concrete examples of domestic partnerships created at the municipal level which have actually reduced harm. Recall the barriers to legalization mentioned previously–both criminalization and restriction of the autonomy of local governments. Logically, legalizing CNM domestic partnerships at the local level depends on removing both of these barriers. As previously stated, this can be achieved through decriminalization and both increasing the transparency of and expanding Home Rule provisions in regards to creating domestic partnerships.

The merits of Home Rule privileges which allow for the creation of domestic partnerships are abundant. For example, in Florida prior to Obergefell v. Hodges, the case Lowe v. Broward County challenged Broward county's authority to create domestic partnerships among same-sex and opposite-sex partners. This challenge occurred despite the county being granted Home Rule authority prior by the state government.²² Lowe's challenge was unsuccessful because of the expansiveness of Home Rule in this state. Because of this, couples in this county were allowed to enjoy their local government's protection of their private lives.

The benefits of local partnership laws which create legal status for CNM partnerships are further evidenced by those already passed. Progress has already been made on this issue in several local governments, specifically in three municipalities in Massachusetts. "In 2020 and 2021, three Boston-area municipalities–the city of Somerville followed by Cambridge, and the town of Arlington became the first in the country to extend the legal definition of domestic partnerships to include polyamorous relationships."²³ As a result, polyamorous couples in both cities now have greater access to resources which were previously denied to them due to their practicing of CNM.

In Cambridge, this guarantees hospital visitation, visitation at correctional facilities, access to children at school, and preventing housing and employment discrimination within the city.²⁴ Likewise, in Somerville access to children is guaranteed within the city.²⁵ In both cities, some of these rights may also be available elsewhere, depending on the location.²⁶ These examples illustrate merits offered by legal recognition at the local level to ensure the liberty owed to members of CNM relationships.

It is evident that domestic partnerships offer a protection to the private sphere that reduces harm experienced by polyamorous people. Furthermore, the creation of domestic partnerships can offer the benefit of creating legal legitimacy. Because of these two gains shown, in both the face of current harm and in bolstering the defense for equality, domestic partnerships offer great benefits in the here and now to members of the CNM community.

Polyamory is Harm-Neutral

Up to this point, I have argued that protecting the private life of polyamorous individuals by offering legal recognition and protection fulfills the government's obligation to its CNM citizens. A core component of this hinges upon my claim that polyamory does no harm in and of itself as long as it is practiced by consenting adults. To further defend my overall position, I counter arguments which contend that polyamory actually harms members of such relationships, children parented by such unions, and women.

In congruence with my defense of polyamory's harm-neutrality, a 2018 study published in the Journal of Social and Personal Relationships found that, "no differences in mean levels of relationship and sexual satisfaction were found between CNM and monogamous individuals," when evaluating both types of relationships.²⁷ Even if this were not the case, and polyamorous individuals were less happy than their monogamous counterparts, the government would produce greater harm than good by intervening or failing to offer CNM people protections and legal status. The negatives of such a paternalistic state, or a state which allowed for relationship inequality among its citizens, would far outweigh the benefits of limiting the nonexistent harms of polyamorous unions.

Furthermore, some opponents of CNM argue that children parented by non-monogamous couples are subject to a variety of harms. Psychologist Dr. Karen Ruskin, a marriage and family therapist, raises the potential for these children to have greater feelings of neglect and abandonment than children raised by monogamous couples.²⁸ According to this position, polyamorous union harms others who did not consent to the union–the children. This position contrasts greatly with the following findings from a 2021 Canadian study published in the Archives of Sexual Behavior. The findings reveal the following:

Many of the participants of said study who indicated being in childrearing roles discussed the cooperative elements of raising children. Pain mentions the mentality of "it takes a village to raise a family," which is echoed in the "more is more" theme of our research project. This is similar to Pallotta-Chiarolli et al.'s (2013) concept of collaborative parenting in which several adults contribute to raising children. Within the present study, not only were participants involved in multiple parenting families once children were born, but multiple partners were involved from conception or even earlier family planning discussions. Childbearing participants spoke of receiving support from their partners and their partners' partners which in turn allowed them to reinvest that support in childrearing and in their own partnered relationships. In addition to having more time to reinvest in relationships with others, participants were able to ensure some free time to themselves.²⁹

Upon weighing these opposing perspectives on polyamorous parenting, I argue the study's finding, that children can benefit from polyamorous parents, is likely more accurate than Dr. Ruskin's conclusion. It is more likely that children can benefit from having either monogamous or polyamorous parents to an equal degree. This claim is further supported by the conclusion of a 2011 study published in Social Science Research: "marriage is not a blanket prescription for the well-being of children, any more than it is for the well-being of adults. Recent policy initiatives to promote marriage need to take account of how variation within marriage relates to child well-being."³⁰ The study reveals that the benefits offered to a child by their parent(s) is more related to the quality of the care provided by them, rather than the structure of their family.

Additionally, as has been previously mentioned, there are already polyamorous partnerships raising children together who are burdened by discrimination.³¹ Because of this, it is of the greatest utility to limit discrimination of CNM parents for the welfare of a child they are raising. This is so on the grounds that allowing ease of parenting by means of formalizing one's status as a parent will benefit children. This will occur because it will allow all of a child's parents to have an equal role in areas of caretaking which require legal status. Consequently, it is inconsistent to raise child welfare as a criticism of creating CNM domestic partnership as they will serve to enhance child welfare.

Finally, I will address the criticisms of those who believe that allowing for the legal recognition of polyamory will harm women. More specifically, some argue that polyamory could be a, "co-opting and rebranding of polygamy, so that it loses its nasty association with the oppression of the most disadvantaged women," and that, "the co-opting of the sanitized version [of polygamy] will further normalize a practice that is anything but liberating for women in this arrangement."³² Elaborating on this concern, sociologist Elisabeth Sheff, who studies polyamorous families, voices that polyamory among partners of varying sexes occurs on the backdrop of patriarchal power dynamics and the current inequality of the sexes.³³ This fact could be used to argue that polyamorous relationships involving women and men will be built upon the sexist power structures which exist in society at large. Following this, normalizing and legally recognizing CNM relationships will serve to strengthen the patriarchy and should consequently not occur.

To address this, I will first agree polyamory could harm women if gender power dynamics are not consciously counteracted in CNM relationships. Despite this, I contend it would be more harmful to women for the government to disallow the creation of CNM domestic partnerships because of this potential. This is true because this disallowing would be based on the infantilization of women, stripped of their agency by a paternalistic government who would claim to know more about what serves to benefit them than themselves. Furthermore, it would also fail to counteract the current discrimination polyamorous women face by virtue of practicing CNM. Therefore, women's rights would be better served by allowing the legal recognition of CNM unions than by disallowing them.

This is not to say that there are not myriad women and girls who suffer in patriarchal, polygamous arrangements. However, this problem is not related to the structure of polyamorous relationships but rather is a consequence of patriarchal power structures as a whole. Monogamy is neither immune to, nor the solution to the gendered power dynamics that may occur in opposite-sex couples. This is true on the grounds that women and girls can also suffer in predatory monogamous arrangements, or be in monogamous relationships which embody gendered power dynamics. Because this can occur in both monogamous and polyamorous relationships in patriarchical societies, potential sexism within a polyamorous relationship is a symptom of the ills of the society in which it occurs, not the structure of the relationship itself. In other words, blame put on polyamory is misplaced and should rather be directed towards the patriarchy.

Furthermore, using this misplaced blame to argue against the creation of legal status and protection for polyamorous unions fails to account for the needs of polyamorous unions constituted by same-sex individuals. Such unions would not face gender-based power imbalances due to their homogenous sexual composition. To legislate all polyamorous unions only for the concerns regarding mixed-sex relationships would be heteronormative and result in the allowance of discrimination against same-sex CNM relationships based on reasoning which does not apply to them. Therefore, the potential for sexist power dynamics to occur both does not have polyamory to blame, and does not adequately account for the wide variety of polyamorous relationships which would be recognized should domestic partnerships be legalized.

From these points it is clear that all of the harms frequently attributed to polyamory actually have other sources. These include poor relationship skills, poor parenting skills, or sexism. While these may manifest in polyamorous relationships, it is not by virtue of their structure, as they can manifest in monogamous relationships just as easily. Because of this, to object to the allowance of CNM domestic partnerships on the grounds that they themselves are harmful by virtue of their structure is erroneous.

Conclusion

The call for legal recognition of CNM relationships is urgent. Everyday, polyamorous people face unwarranted discrimination for engaging in a private practice which does no harm. Because of this, it is the obligation of the government to protect these people as means of ensuring individual liberty. As has been revealed by the previously analyzed examples of historically stigmatized relationships throughout history, this can be achieved through legal recognition. This will both allow CNM adults to form legally recognized unions, and offer them protection from discrimination.

The first step along this road is the allowance of the creation of CNM domestic partnerships. This can be achieved by first removing legal barriers faced by local municipalities, and then passing legislation creating the right to such partnerships. This will serve polyamorous people, their children, and the society at large in that it will allow the laws of the U.S. to follow the shifting needs of the people they govern to ensure freedom. To oppose this is to oppose equal protection under the law for all people. It is to stand in opposition to the individual liberty consenting adults are owed when navigating their romantic lives.