Law Professor Refers to Marriage Laws as “the moralistic residue of an earlier time”

Sometimes the process of the destruction of a society begins in the pages of law journals.

Today, we are going to examine an article by a professor of law at Loyola Law School Los Angeles. It is contained in the Iowa Law Review, Vol. 107, No. 5, 2022 and it is revealingly entitled, Beyond Polygamy.

The author tries to make the case that marriage in an inherently oppressive institution and should be destroyed. His argument is couched in legalese, but the author’s hope of obliterating one of the foundations of all civilizations comes through loud and clear.

He begins his article by lauding the decision in the summer of 2020 of the City of Somerville, Massachusetts to create a domestic partnership status open to people in group relationships. Apparently, that means an indeterminate number of people shacking up and demanding all the rights of married people. The professor thinks that this is just wonderful:

It amounts to a declaration by the city that plural relationships are valuable and worthy of respect.

There is no recognition that undermining marriage and, by extension, parenthood might be bad for children. It is all about endowing ever-expanding constellations of adults in ever looser forms of commitment with legal protections and validation.

The writer expresses puzzlement that reasonable people across the political spectrum are not applauding this destruction of the very institution that the organizations that they founded were intended to advance. He says, probably correctly, that they may soon be forced to take a stand against the wrecking ball that is swinging dangerously close to marriage in America:

Well-known same-sex marriage opponents like the National Organization for Marriage and the Alliance Defending Freedom have remained silent, as have pro-LGBT-rights organizations like the Human Rights Campaign and Lambda Legal.

There is every reason to suspect that these partisans will soon have to break their uneasy silence.

He helpfully informs us:

All told, hundreds of municipalities nationwide already have domestic partner registries, and other progressive cities will eventually consider whether to expand their domestic partner legislation to people in plural relationships.

Significantly, the writer is not interested in expanding marriage—or increasing the number of spouses in one:

…it is important to clarify what this Article is not about. It is not about polygamy, which refers to marriage between more than two people

No, what he wants to do is destroy the institution of marriage entirely.

He tells us:

…this Article decenters marriage: It assumes that marriage is not the starting or ending point. Instead, it builds a status from the ground up by attending to what people in plural relationships need from the law.

This process of extraction and refinement reveals values crucial to the support of plural relationships, and, by extension, to all family relationships

Such a dainty word, “refinement,” to describe societal sabotage via legal scholarship. Moreover, he does not want to “decenter” marriage—he wants to kill it.

The author provides an overview of the plethora of relationships he wants to validate at the expense of marriage:

…plural relationships are incredibly diverse. The category could potentially include people in patriarchal relationships who consider themselves religiously married, same-sex throuples, heterosexuals in open relationships, platonic life partners, and more

He continues:

Relationships may be sexual or nonsexual; every member may be in a relationship with every other, or they may be linked together in different configurations; they may be same-sex or gender differentiated; see the relationship as permanent or transitory; exclusive or open; raise children together and co-own property, or not.

Oh, that sounds so conducive of social stability.

The intellectual incoherence of much of the article is evidenced by the fact that the author seems to regard laws favoring marriage (which are designed to promote social cohesion and stability) as oppressive, even as he admits that non-marriage, multi-partner arrangements are weak and dysfunctional and argues that the state is somehow obligated to step in and ensure that dysfunctional non-marriage unions survive:

Plural relationships are structurally more complicated than monogamous relationships, and, in many cases, open to change by design. Partners need tools to account for the addition and departure of members and manage disputes, often while the relationship is ongoing. These common needs suggest that it is possible to design a status that is universally relevant while preserving a space for relationship diversity.

Continuing in this incoherency, the author argues that the state is obligated to ensure that as many dysfunctional non-marriage unions be created as possible—but refrain from creating any workable framework from which to regulate the mess he wants the state to foster and oversee:

Laws should recognize as many different configurations of relationships as possible. They should also avoid standardizing obligations in such a way as to alter partners’ relationships or deter them from pursuing recognition.

In other words, the state is to recognize any sort of non-marriage union but must refrain from expecting anything whatever in return.

As noted above, the author regards marriage as an outdated instrument of oppression and says that in his article he is:

exploring the potential of plural relationships to dislodge marriage as a paradigm, weakening its stranglehold on the legal regulation of adult intimacy

He refers to marriage laws as:

the moralistic residue of an earlier time

So much for most of the laws of nations throughout the world.

The author tries to make chaos and abdication of moral and economic responsibility sound eminently reasonable—indeed, desirable and that validating all manner of non-marriage unions would be healthy for all of us:

the fluidity of plural relationships challenges the tendency of the law to assume that relationships are either on or off, that there are distinct moments when relationships—and relational duties—begin and end. This view leads to an artificially narrow understanding of relational rights and duties. The recent efforts to recognize plural relationships promise not only to cast the law’s protections more broadly but to prompt reforms of existing institutions

Oh, yes. Children would benefit from never being quite sure who their mother is and having multiple “fathers” drifting in and out of the household as it suits the men.

A substantial amount of the article is devoted to the categorization of the many sort of unions that the author wants society to validate. It is worth quoting a fairly lengthy passage from the article so that readers of this post get an idea of the counterculture that the author celebrates—and bear in mind, this only a slice of the many relationships he discusses:

In a group relationship, all partners will consider themselves to be in a relationship with the other partners. Three gay men, for instance, may enter into a relationship based on mutual sexual attraction and/or emotional intimacy. A couple comprising at least one bisexual partner could open the relationship to a third person who has sexual relationships with both of the original partners, forming what some call a “polyamorous triad.”

Or the relationship could be a “polyaffective triad,” a cooperative relationship in which all three partners are emotionally but not necessarily sexually connected.

A quad involving two primarily heterosexual couples may all be emotionally, if not sexually, involved with each other.

Asymmetric relationships can also take a variety of forms. A common relationship form is the open couple—partners in a committed relationship who date other people in addition to their primary partner.

In this arrangement, the additional partners can be considered “secondary” or “tertiary” depending on the extent to which they keep their lives separate or consider the arrangement casual or committed (for instance, by maintaining a separate residence).

Another common form is the “V,” in which one person has two partners, neither of whom have a relationship with the other.

In some of these relationships, two of the partners will be legally married.

An extension of the V is a “hub and spoke” relationship in which the central partner has relationships with more than two others.

I wonder what it is like to live one’s life as, “tertiary.” Who walks the dog?

And in this law journal article, law itself is treated in an incredibly cavalier fashion:

all the relationship forms can toggle between categories depending on the types of intimacies shared by the partners and the extent to which they are recognized by the law

The author seems to regard notions of lifelong commitment to another person as passe and silly:

In contrast to marriage law, which prizes delineation, not all plural relationships are so easily characterized as on or off. People might be friends first, then lovers, then back to friends.

The writer says, almost as an aside, of the children in these plural partner settings:

Studies report that children frequently view the adults as friends, older siblings, or aunts and uncles rather than as parent figures.

Doesn’t sound good for children.

To his credit, even as he argues for the destruction of the institution of marriage he admits that some aspects of plural unions are, shall we say, problematic. He says that people in such relationships must:

navigate interpersonal conflicts and negotiations that can be made more complicated because of the relational dynamics that follow from having multiple partners, as well as the impact of partners’ arrivals and departures on their respective interests

Even as the author carps about the supposedly favored treatment that marriage receives from the state, he argues that his own favored group, the plural relationship crowd, should be favored instead:

The law should facilitate partners’ choices regarding the formation and transformation of their relationships, as well as the legal consequences that flow from them. Decisions about whether and with whom to partner are an important aspect of self-determination.

The state is called in to advance the cause of plural relationships and to make it easier for people to be irresponsible in personal relationships with who knows how many people. What could possibly go wrong?

Keep in mind that this is not an article in a fringe libertarian magazine. It is an article in a mainstream law review. And this is the anarchy this professor of law wants to impose on American society:

A legal regime that restricts the choice of partners or imposes mandatory obligations (by limiting the number of partners to three, or by requiring that all should share property equally), would cabin the range of self-defining choices. To the greatest possible extent, then, the law should support the partners’ commitments and recognize their vulnerabilities without seeking to substitute majoritarian understandings of a good life for the partners.

Mandatory obligations—like, say, supporting the dozens of children you have fathered by multiple women?

This is pure decadence:

allowing people to designate “mere” sexual partners as plural relationship partners would affirm the value of sex separate from the demands of marriage.

It would send a strong signal that sex does not require emotional intimacy to have independent value

And guess who would be the primary victims of these sexual utopia--women and children. The author is curiously oblivious to the harm that would be done to women and children by a state-sponsored campaign to undermine marriage. He himself tells us:

research suggests that people in plural relationships are more likely to resist the imposition of relationship-based norms and expectations

Ya think?

The author goes on and on about how awful stigmatization of minority groups is and tells us that injustice is a bad thing. That is not a persuasive argument for upending marriage, which has been shown in countless articles and studies to be the greatest tool for poverty reduction known to man and of immense benefit to children.

The author also labels as “discrimination” anything that stands in the way of say, people doing absolutely whatever they want in terms of sexual relationships, co-habiting, louche personal behavior and desertion of children and so forth. He quotes, predictably, Laurence Tribe and Anthony Kennedy as experts on matters affecting oh, let’s say, vulnerable women and children in exploitative non-marriage relationships and multiple non-related-adult male-dominated households.

He writes:

I propose to strike a balance that includes a broader spectrum of relationships, and caution against the tendency to craft a package of rights and obligations that comes too close to being brought within the orbit of marriage.

He seems to want a sexually-loose commune on every block and does not seem keen on laws that protect women from sexual violence and exploitation:

The law can prevent discrimination against plural relationships in two ways. First, it can eliminate rules that burden or interfere with plural living arrangements. Second, it can promote equal access and resist the imposition of stigma by prohibiting discriminatory conduct.

Several laws operate to exclude or punish plural relationships. The identification of all such laws goes beyond the scope of this Article, but obvious examples are zoning laws that restrict occupancy to narrowly defined family units and criminal laws that regulate intimate conduct outside of marriage.

And as we have seen in the campaign against those who believe in traditional marriage and who have become targets of boycotts, cancel culture, and state persecution (just ask Jack Phillips of Masterpiece Cakeshop or Aaron and Melissa Klein of Sweet Cakes by Melissa), this passage should frighten anyone who cares about religious liberty:

Both states and municipalities could prioritize legislation that affirmatively protects people in plural relationships from discriminatory acts.

“Discriminatory acts” is a term used to target people of faith who refuse to go along with the woke agenda.

The author is straightforward about his game plan for undermining marriage—follow the example of Somerville and shred marriage norms at the municipal level, urging municipalities to adopt:

robust antidiscrimination protections. Even if the laws are not consistently enforced, they may still deter instances of discriminatory conduct.

Moreover, they can change social norms, lessening the stigma faced by people in plural relationships.

He goes on, chillingly:

Recent studies suggest that the legalization of same-sex marriage at the statewide level reduced implicit and explicit antigay bias.

Laws recognizing plural relationships could have a similar effect. Even if they do not, changing the norm still makes compliance more likely because people can perceive and react to changing social norms even if they do not change their personal views.

He continues in this distinctly sinister vein:

The topic goes from an abstract argument to a concrete decision. It is more visible and cannot easily be ignored.

There is also likely to be an endowment effect or status quo bias, potentially favoring the minority position or at least shaping the types of arguments that the global majority must marshal to overturn the decision… the long-term impacts of backlash must be weighed against the benefits of agenda-setting and the possibility that a backlash will never come

This author hates the institution of marriage. He indicates as much here:

I conclude the Article by exploring potential impacts beyond plural relationships. My central suggestion is that plural relationships may weaken marriage’s influence over the full range of caring adult relationships, allowing other relationships, and individuals, to flourish.

He says:

What is needed is something that displaces marriage… Plural relationships, with their permeable boundaries, capaciousness, and fluidity, provide that new frame.

Again, this is a professor of law writing in a mainstream law journal. Pity the children who become the victims of “permeable boundaries, capaciousness, and fluidity.”

The world this author is working for is one in which love and commitment are not high on the agenda—nothing seems to matter except a free-floating self-centeredness and interchangeability of personnel in intimate relationships:

the departure of a partner during an ongoing relationship does not necessarily result in the termination of the relationship, at least when two or more partners are interested in continuing it.

In that sense, the relationship can live on indefinitely in different forms.

This notion of a relationship in a perpetual state of becoming is at odds with marriages, which are alternately conceived of as eternal and subject to clear points of demarcation.

Watch for the word “plural” in news stories in your city and be prepared to stand up for marriage

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