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March 23, 2005, 7:46 a.m.
Rick Santorum Was Right
Meet the future of marriage in America.

I have seen the future of American family law, and her name is Elizabeth F. Emens. A whiz kid with a Ph.D. in English from Cambridge University and a J.D. from Yale Law School, Emens, who teaches the University of Chicago Law School, has published a major legal and cultural defense of polyamory (group marriage). In "Beyond Gay Marriage," I showed that state-sanctioned polyamory was rapidly becoming the favorite cause of scholars of family law. Yet not until now has anyone offered so bold, informed, intelligent, and comprehensive a brief for polyamory. Emens's breakthrough article is a sign that the case for mainstreaming polyamory is finally being...well, mainstreamed.

Those who still think of the University of Chicago as a bastion of conservatism — including social conservatism — need to think again. The University of Chicago is rapidly becoming just another leftist-dominated campus. Mainstream liberals Cass Sunstein and Martha Nussbaum are arguably the most influential law professors at Chicago's law school (although libertarian conservative Richard Posner is there part-time). Emens nods to Sunstein and Nussbaum in her acknowledgments. And Emens's presence at U. Chicago Law is a sign that the powers-that-be at this liberal institution believe that legalized polyamory is — or ought to be — the next big cause in family law. Anyone who believes that a serious public campaign for legalized polyamory is impossible should take a look at Emens's work.

a professor's dream and a senator's nightmare

Emens's 2004 article, which appears in the Volume 29, Number 2 of The New York University Review of Law and Social Change, is called, "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence." Emens begins by suggesting that Senator Rick Santorum was right — or, at least, she seems to be trying to bring Santorum's prophesy to fulfillment. The professor is unhappy that proponents of same-sex marriage agree with Santorum that were gay marriage to create a new openness to adultery, bigamy, and polygamy, that would be a bad thing. Emens's preferred response to Rick Santorum's parade of horribles is "So what?"

Emens notes that, in the wake of Lawrence v. Texas, anti-polygamy laws seem ripe for challenge. Yet she concentrates not on constitutional issues, but on building a deeper case for the social utility and justice of polyamory.

Clearly, Emens is taking her cues from the movement for gay marriage. She suggests "that we view this historical moment, when same-sex couples begin to enter the institution of marriage, as a unique opportunity to question the mandate of compulsory monogamy."

More deeply, Emens lays out a sophisticated case for treating polyamory not just as a practice, but as a disposition, broadly analogous to the disposition toward homosexuality. That, in turn, allows her to call a whole raft of laws into question — from marriage laws to partnership laws, to zoning laws, to custody laws. All these laws, says Emens, place unfair burdens on those with a "poly" disposition.

Polyamorists have long treated their inclination toward multi-partner sex as analogous to homosexuality. Polyamorists intentionally use phrases like "in the closet" and "coming out" to link their cause with the fight for gay marriage. What's new here is that a scholar has built this analogy to homosexuality into a systematic and sophisticated case.

closeted polyamorists

Up to now, gay-marriage advocates like Andrew Sullivan and Jonathan Rauch have dismissed the analogy between homosexuality and polyamory by arguing that homosexuality is a far more deeply rooted impulse than the superficial, even frivolous, desire for sex with more than one partner. By contrast, Emens offers a "continuum model" inspired by the radical lesbian thinker Adrienne Rich. In her famous essay, "Compulsory Heterosexuality and Lesbian Existence" (which Emens's title deliberately echoes), Rich argues that all women, whether they identify themselves as lesbian or not, are in some respects lesbians. If women can just find the lesbian within, then, even for women who remain heterosexually identified, the prejudice against homosexuality will fall away. That, in turn, will make it possible for many more women to freely choose lesbianism.

Following Rich, Emens argues that everyone has a bit of "poly" inside. If we can just discover, nurture, and accept our inner polyamorist, then even for those who choose to remain monogamous, the prejudice against polyamory will disappear. This will allow everyone to make an unconstrained choice between monogamy and polyamory. So it's possible to see both homosexuality and polyamory as part of a complex continuum of human sexuality, says Emens. And when we begin to look at things this way, we can finally take down the legal, social, and cultural barriers to both homosexuality and polyamory.

But aren't at least some people at one end of the sexual continuum intensely homosexual? Yes, says Emens, but the very same thing is true of polyamory. According to Emens, whether for biological or cultural reasons, some folks simply cannot live happily unless they are allowed multiple, simultaneous sexual partners. And for these people, our current system of marriage and family laws is every bit as unjust as it is for homosexuals. A person with an intensely polyamorous disposition simply cannot be happy, says Emens, outside of a polyamorous family setting. For these people, argues Emens, our social hostility to polyamory imposes a vast range of unjust legal burdens.

Emens makes an elegant case for extending the logic of gay marriage to state-sanctioned polyamory. But she doesn't stop there. Emens tackles a whole series of further objections to polyamory. So, for example, what about the need for cultural consensus in our marriage practices? If people who believe in monogamous marriage can't take it for granted that their potential partners believe in marital monogamy, aren't we setting ourselves up for social chaos? No problem, says Emens. In a polyamory-friendly world, monogamists will be able to form associations, just as polyamorists do now. People can join monogamy or polyamory clubs, just like we now choose churches. That way, we'll be assured of finding companions who share our own rules of marriage.

Emens even has a practical program for creating a polyamory-friendly world. Instead of abolishing the remaining laws against adultery, Emens wants to keep these laws in place, but force people to decide before they marry whether to contract for a monogamous or a nonmonogamous union. Emens thinks this should probably be done through civil law rather than criminal law. But her clever idea is to force people to make a conscious choice from the start about monogamy. In effect, Emens is taking a leaf from the book of Louisiana's "covenant marriage," but turning it toward the radical end of encouraging marriages that are, by agreement, nonmonogamous from the start.

There's plenty more in this article. Emens offers the most detailed analysis I've seen of the April Divilbiss case — the first legal challenge to polyamory, and a case that polyamorists once hoped would serve as a catalyst for their cause as the Stonewall riots were for the gay-rights movement. It's clear from Emens's account of the case how very close the polyamorists came to getting their way.

The judge in the Divilbiss case apparently took a number of liberties that he would have been unlikely to get away with in a strongly litigated and closely watched case. It's clear that if the polyamorists offer serious financial and legal backing to another such legal challenge, things could turn out very differently. For example, the judge in the Divilbiss case ignored the findings of four court-appointed experts, all of whom found in favor of the polyamorists. It's also clear that in the course of researching the Divilbiss case, Emens has been in direct contact with the leaders of the polyamory movement. So the polyamorists may at last have made a connection to a heavy-hitting legal champion.

Another one of Emens's case studies is an example of Mormon polygamy that was written up in Redbook. This case is important because Emens uses it to develop a feminist argument for Mormon polygamy. According to Emens, classic one man/multi-woman polygamy is the perfect solution to the problems of the modern career woman. In classic monogamous marriages, women have no choice but to make painful compromises between love, work, and motherhood. But in a family with one husband and nine wives, eight of the wives can work full time, while the ninth stays home and does paid care for everyone else's children. Here Emens puts forward an argument against those who claim that Mormon-style polygamy oppresses women. (And don't miss the discussions of group sex in a couple of Emens's case studies.)

We all know what the back and forth of the gay-marriage debate is like. Well, if you want a preview of the coming public debate over polyamory, just read Emens. She has a reply/rationalization to meet just about any objection to polyamory. Sexual-harassment law has its Catherine McKinnon, and now in Elizabeth Emens, polyamory has found its legal muse.

Is Emens right? Not by a long shot. The most striking thing about her article is how little it has to say about children. And when Emens does take up the problem of children-and the related problem of the stability of polyamorous unions — she is superficial and dismissive. For all the other links between this defense of polyamory and the gay-marriage battle, the most important connection may be this question of children. If the gay marriage battle hadn't already done so much to separate the idea of marriage and parenthood, an article like this could never have been written. Once we act as though children are anything other than the central reason for the public interest in marriage, we open the way to exactly what Emens offers.

Yet even if Emens's arguments don't begin to persuade me, she's clearly laid out the fundamentals of a major public crusade for polyamory. Gay marriage in but a single state has brought us this. And it certainly isn't going to stop here. The University of Chicago Law School is investing in polyamory. Meantime, Laura Kipnis's polemic against marital monogamy has earned her a regular job at Slate. Folks (including ones at Slate!) used to say we'd never slide down the slope from gay marriage to polyamory. Gradually, the slippery-slope scoffers are being replaced by bold polyamory defenders. Yes, as someone once said about Dan Quayle, Rick Santorum was right.

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