University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2004 Monogamy's Law: Compulsory Monogamy and Polyamorous Existence Elizabeth Emens Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Elizabeth Emens, "Monogamy's Law: Compulsory Monogamy and Polyamorous Existence" (University of Chicago Public Law & Legal Theory Working Paper No. 58, 2004). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 58 MONOGAMY’S LAW: COMPULSORY MONOGAMY AND POLYAMOROUS EXISTENCE Elizabeth F. Emens THE LAW SCHOOL THE UNIVERSITY OF CHICAGO February 2003 This paper can be downloaded without charge at http://www.law.uchicago.edu/academics/publiclaw/index.html and at The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=506242 1 MONOGAMY’S LAW: COMPULSORY MONOGAMY AND POLYAMOROUS EXISTENCE 29 N.Y.U. REVIEW OF LAW & SOCIAL CHANGE (forthcoming 2004) Elizabeth F. Emens† Work-in-progress: Please do not cite or quote without the author’s permission. I. INTRODUCTION II. COMPULSORY MONOGAMY A. MONOGAMY’S MANDATE 1. THE WESTERN ROMANCE TRADITION 2. STORIES FROM BIOLOGICAL ANTHROPOLOGY B. MONOGAMY’S REALITY 1. THE FAILURES OF SUPERMONOGAMY 2. THE FAILURES OF SIMPLE MONOGAMY III. CONTEMPORARY POLYAMORY A. TERMS AND MODELS B. RELATIONSHIPS 1. A WOMAN WITH TWO HUSBANDS: APRIL DIVILBISS 2. A FOUR-PARTNER FAMILY: EDDIE SIMMONS 3. A “MORMON” WIFE: ELIZABETH JOSEPH 4. AN ETHICAL SLUT: DOSSIE EASTON C. THEORY 1. SELF-KNOWLEDGE 2. RADICAL HONESTY 3. CONSENT 4. SELF-POSSESSION 5. PRIVILEGING LOVE AND SEX IV. THE PARADOX OF PREVALENCE A. POSSIBLE FACTORS IN THE RESPONSE TO POLYAMORY B. THE PROBLEM OF THE UNIVERSALIZING VIEW OF POLYAMORY C. ALTERNATIVES AND IMPLICATIONS V. DISPOSITIONS: SEXUAL AND LEGAL A. A DISPOSITIONAL MODEL OF POLY AND MONO DESIRE B. THE ROLE OF LAW: A THOUGHT EXPERIMENT VI. CONCLUSION 1 This title borrows from Adrienne Rich. See Adrienne Rich, Compulsory Heterosexuality and Lesbian Existence, 5 SIGNS 631 (1980). † Bigelow Teaching Fellow and Lecturer in Law, University of Chicago School of Law, 2003-04. J.D., Yale Law School, 2002. Ph.D. in English, King’s College, University of Cambridge, 2002. I am grateful to the following people for their contributions to the development of this project: Lisa Van Alstyne, Ian Ayres, Katharine K. Baker, Brian Bix, John Bronsteen, Mary Anne Case, Derek Dorn, Moon Duchin, J. Richard Emens, Katherine Franke, Carolyn Frantz, Kent Greenfield, Philip Hamburger, Bernard Harcourt, Adam Hickey, Morris Kaplan, Amy Kapczynski, Gregory Khalil, Sarah Lawsky, Sam Miller, Martha Nussbaum, Brett Phillips, Eric Posner, Jeff Redding, Bill Rubenstein, Natasha Rulyova, Reva Siegel, Rachel Smith, Sonja Shield, Stephanie Stern, Geof Stone, Jeannie Suk, Julie Suk, Cass Sunstein, Beatrice Wolper, Kenji Yoshino, and participants in workshops and classes at UCLA, the University of Cambridge, the University of Chicago, and Yale Law School. I also wish to thank the excellent staff of the N.Y.U. Review of Law & Social Change and of the D’Angelo Law Library at the University of Chicago. All errors and omissions are of course my own. Monogamy’s Law p. 1 Work-in-progress—Please do not cite or quote without author’s permission. Indeed, one reason monogamy is so important to us is that we are so terrorized by what we imagine are the alternatives to it. The other person we fear most is the one who does not believe in the universal sacredness of—usually heterosexual—coupledom. 2 —Adam Phillips I. INTRODUCTION Monogamy and marriage are hot topics at the moment. News sources are replete with articles about same-sex couples who want the state to recognize their long-term commitments as marriages. And, increasingly, these couples seem to be getting their wish.3 The focus of this article is different. Like an “unmannerly wedding guest,”4 this article invites the reader to pause amidst the whirlwind of marriage talk, to think about monogamy and its alternatives. * * * If Rick Santorum is right, then interesting times lie ahead. Before the Supreme Court struck down Texas’s homosexual sodomy law in Lawrence v. Texas5 last June, Senator Santorum warned that, “[i]f the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”6 No doubt, Santorum does not want the Court to make good his prediction.7 His radical vision is instead an example of the oft-noted propensity of opponents of gay rights to claim that the latter leads a 2 ADAM PHILLIPS, MONOGAMY 98 (1996). 3 In addition to the option of religious marriage available to same-sex couples in various religions and denominations, civil marriage has recently become open to same-sex couples in three countries: the Netherlands, since April 2001, see Wet wan 21 december 2000 tot wijziging van Boek 1 van het Burgerlijk Wetboek in verband met de openstelling van het huwelijk voor personen van hetzelfde geslacht (Wet openstelling huwelijk), Stb. 2001, nr. 9 (Neth.), translated in Text of Dutch Act on the Opening Up of Marriage for Same-Sex Partners (Kees Waaldijk trans.), in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS, app. II, at 455, 455-56 (Robert Wintemute & Mads Andenaes eds., 2001); Belgium since early 2003, see Developments in the Law—The Law of Marriage and Family, Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United States and Europe, 116 HARV. L. REV. 2004, 2004 (2003); and two Canadian provinces, Ontario and British Columbia, since summer 2003, see Tying the Knot, GLOBE & MAIL (Toronto), July 15, 2003, at A9. The Supreme Judicial Court of Massachusetts has also just confirmed that marriage is required by its recent decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003). See Opinions of the Justices to the Senate, http://www.boston.com/news/specials/gay_marriage/sjc_020404/ (Feb. 4, 2004).* 4 MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE ETHICS OF QUEER LIFE 119-20 (1999). 5 123 S. Ct. 2472 (2003). 6 Sean Loughlin, Santorum Under Fire for Comments on Homosexuality, CNN.COM, Apr. 22, 2003, at www.cnn.com/2003/ALLPOLITICS/04/22/santorum.gays/ (quoting Interview by Associated Press with Sen. Rick Santorum, Apr. 21, 2003). The Court in Lawrence did not frame the right at issue as the right to engage in gay sex, see 123 S. Ct. at 2478, but the result, from Santorum’s perspective, was no doubt the same. 7 Though Santorum is not alone in suggesting that polygamy could be the logical extension of the Court’s decision. See, e.g., Lawrence, 123 S. Ct. at 2490 (Scalia, J., dissenting) (“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision . .”); Jeffrey Rosen, How To Reignite the Culture Wars, N.Y. TIMES MAG., Sept. 7, 2003, at 48 (“Taken to its logical conclusion, Kennedy’s argument would seem to invalidate all moral restrictions on intimate associations that, it could be said, cause no harm to others—restrictions on polygamy, for example.”). Monogamy’s Law p. 2 Work-in-progress—Please do not cite or quote without author’s permission. parade of horribles such as polygamy.8 Like Santorum, proponents of the Defense of Marriage Act (DOMA)9 in 1996 warned that same-sex marriage would lead to the legalization of incest,10 bestiality,11 pedophilia,12 and polygamy.13 And rhetoric about polygamy featured prominently in the legal14 and popular15 debates surrounding the 1999 Vermont Supreme Court decision Baker 8 See, e.g., Maura I. Strassberg, The Challenge of Post-Modern Polygamy: Considering Polyamory, 31 CAP. UNIV. L. REV. 439, 439 (2003) (noting conservatives’ frequent use of analogies to polygamy when discussing same-sex marriage); WILLIAM N. ESKRIDGE, JR., GAYLAW 280 (1999) (same). In the wake of Lawrence and the Supreme Judicial Court of Massachusettes decision in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), numerous opponents of same-sex marriage have also drawn the analogy. See, e.g., George F. Will, Culture and What Courts Can’t Do, WASH. POST, Nov. 30, 2003, http://www.washingtonpost.com/wp-dyn/articles/A20243- 2003Nov28.html. 9 28 U.S.C. § 1738C (2001) (“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”); id. § 1748C(3)(a)(7) (“In determining the meaning of any Act of Congress, . the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”).