Plural Marriage Recognized in New York Under Key Precedent; Could Lead to Right To Marry More, Or Reconsideration of Same-Sex Marriage
Plural Marriage Now Recognized In New York
WASHINGTON, D.C. (September 25, 2022) – A judge in New York has just ruled that polyamorous relationships – in this case a 3-person married unit living together in an apartment – are entitled to the same legal protection as opposite-sex or same-sex 2-person marriages.
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Since the judge relied upon the famous legal precedent which led to constitutional protection for same-sex marriages, this ruling could expand that right by creating a fundamental right to marriages of 3 or more persons.
On the other hand, this expansive reading of the law could even lead to an overruling of the constitutional right of two people of the same sex to marry, says public interest law professor John Banzhaf. In the court's words:
"Before gay marriage was legalized in any state, Braschi v Stahl Assocs. Co. (N.Y. 1989) was decided. The New York State Court of Appeals became the first American appellate court to recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition.
Braschi is widely regarded as a catalyst for the legal challenges and changes that ensued. By the end of 2014, gay marriage was legal in 35 states through either legislation or state court action. Obergefell v Hodges (2015), the seminal Supreme Court decision that established same-sex marriage as a constitutional right, was also heralded as groundbreaking."
The Braschi case from New York's highest court, upon which the trial judge relied, held that whether or not a individuals in a marriage are entitled to some legal protection "should be based upon an objective examination of the relationship of the parties.
In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society.
And the reliance placed upon one another for daily family services...it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control."
Clearly, some judges can early find that these same characteristics are present in other polyamorous relationships where 3 or more persons live together in a house or apartment, and perhaps even raise children together, suggests the law professor.
The Rapidly Expanding Legal Recognition
Moreover, it is not the only example of the rapidly expanding legal recognition of plural marriages. As the trial judge wrote:
"In February 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who 'consider themselves to be a family' to be recognized as domestic partners….
The neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents.
In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states.
Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents. American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?" [emphasis added]
On the other hand, if the Supreme Court's decision in Obergefell is going to be open the door to judicial recognition of plural marriages - something many experts predicted at the time would never happen - the Supreme Court with its new conservative majority might decide to reconsider and then overrule Obergefell as it so recently overruled Roe v. Wade and its constitutional right to abortions, says Banzhaf.
Indeed, in helping to overrule Roe, Justice Clarence Thomas said that same rationale should also be used to overturn cases establishing rights to contraception, same-sex consensual relations and same-sex marriage.
He wrote that the court “should reconsider” all 3 decisions. Moreover, he said, the Court has a duty to “correct the error” established by those precedents. . . overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights they established.
If rights not expressly found in the Constitution can be held to establish entitlements to marry someone of the same sex, as well as 3 or more persons of any sex, could they be further expanded to a right to marry a close relative, especially if offspring with possible genetic defects are unlikely to occur (e.g., father and son), asks the law professor, who has himself created some new legal rights.
