In the summer of 2020, the city of Somerville, Massachusetts, passed the first multiple-partner domestic partnership ordinance in the country.1 Spurred by the pandemic, the city council acknowledged residents’ inability to access their partners’ health insurance without legal recognition of their relationships.2 Its members voted unanimously to adopt a domestic partnership law.3 The novel ordinance defined “domestic partnership” as “the entity formed by people,” fulfilling six criteria — including that they “are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship,” “reside together,” and “consider themselves to be a family.”4 Now, Somerville “afford[s] persons in domestic partnerships all the same rights and privileges afforded to those who are married” and interprets “spouse,” “marriage,” and “family” to encompass domestic partnerships in other city ordinances.5
The adjacent city of Cambridge followed suit, passing its own multiple-partner domestic partnership ordinance in 2021.6 To reinforce community-driven efforts, research and advocacy organizations formed the Polyamory Legal Advocacy Coalition7 (PLAC). PLAC lawyers worked closely with city officials to make the Cambridge registration process accessible by omitting the cost-prohibitive requirement that all persons in the partnership live together.8 Under PLAC’s advisement, the Council also eliminated the provision demanding detailed evidence of applicants’ relationships, which did not apply to monogamous couples.9 As a result, residents are registering under the ordinances.10 And interest in passing similar laws is growing in other municipalities.11 Recently, a meeting bylaw from Arlington, Massachusetts, recognized domestic partnerships of two or more people.12 The state’s Attorney General approved it, determining that “the limited scope of the . . . by-law does not conflict with state law” on marriage.13 There has also been momentum in consensually non-monogamous (CNM) communities — who engage in multiple relationships with the consent of all partners involved — and structurally diverse families across the country to organize locally and pursue legal recognition of their relationships.14
With these untested ordinances come new questions. A “domestic partnership” typically refers to a legal status acknowledging an unmarried couple and their children as family for limited purposes, such as employee benefits.15 All domestic partnerships lack federal protections granted to civil marriages.16 But states and other local jurisdictions define these partnerships, so domestic partners’ rights vary and may mirror marital rights in some places.17 However, municipalities instituting ordinances may confront state preemption of “marriage-like” domestic partnerships. Additionally, the criminalization of multiple-partner relationships through antibigamy and antipolygamy statutes may represent a roadblock to ordinances.18 All fifty states and Washington, D.C., prohibit polygamy or bigamy in their statutes or constitutions.19 California, Colorado, Washington, and Washington, D.C., added domestic partnerships or civil unions to their definitions of statutory bigamy.20 Forty-eight states do not discuss domestic partners in their antipolygamy laws,21 but multiple-partner ordinances may clash with these statutes if the rights they create are not sufficiently distinguishable from marriage. Nonetheless, there may be unexplored constitutional protections for legally recognizing multiple-partner domestic partnerships.
This Note examines potential legal challenges to multiple-partner domestic partnership ordinances. Part I describes communities that the ordinances serve, characterizes the discrimination and harassment that communities face, and explains what CNM people will gain from the passage of these ordinances. Part II surveys the complex legal questions that these ordinances generate, such as local government’s authority to pass them, state preemption through civil and criminal statutes, criminalization through antibigamy laws, and the application of comity doctrine in other cities and states. Part III evaluates approaches for addressing challenges that the ordinances may face at the municipal, state, and federal levels, such as legislative advocacy and litigation based on gay rights precedents. Ultimately, the ordinances likely will survive challenges and show that, legally speaking, “three is company, too.”
I. The Need for Multiple-Partner Domestic Partnership Ordinances
This Part clarifies who the CNM community is, how its members suffer from discrimination, and why CNM — in particular, polyamorous — individuals will benefit from multiple-partner domestic partnership ordinances.
A. The CNM Community
Somerville, Cambridge, and Arlington passed ordinances when structurally diverse families called attention to the discrimination that they face.22 Amos Meeks, an Arlington resident who lives with his two life partners, proposed the amended domestic partnership language in his town.23 His motivation was to combat prejudice, create co-parenting rights, and reduce healthcare barriers for people with multiple partners.24 “We are a family by any reasonable sense of the word, but not in the eyes of the town or the state,” Meeks reflected.25
Polyamory involves intimacy with more than one person with the consent and knowledge of all parties.26 The CNM community includes people who “practice polyamory, open relationships, swinging, relationship anarchy[,] and other types of ethical, non-monogamous relationships” that involve romantic, physical, or emotional intimacy of which all partners are aware.27 According to some estimates, approximately four-to-five percent of the U.S. population is currently in CNM relationships, which is slightly larger than the size of the lesbian, gay, and bisexual (LGB) population.28 LGB adults tend to have more experience with CNM relationships, and bisexual individuals have higher levels of CNM involvement than gay and lesbian individuals.29 The rate of CNM participation is “roughly constant across age, education level, income status, religion, region, political affiliation, and race.”30 And it is becoming more visible.31
B. Discrimination Against the CNM Community
With that visibility comes hardship. Over half of people in the CNM community have reported workplace, housing, and other forms of discrimination.32 Employers have fired employees who were polyamorous based on morality clauses in their contracts.33 Some housing laws restrict residents to those related by blood, adoption, or marriage, preventing polyamorous people from living together.34 Beyond exclusion from these legal protections, CNM individuals encounter discrimination in court.35 During custody battles, ex-spouses have weaponized their partners’ CNM relationship statuses to assert parental unfitness.36 Several multiple-partner groups have won triple-parent custody,37 but most courts have not recognized third parents.38 A lawyer representing polyamorous families, Diana Adams, observes: “Many people are trying to create families in different kinds of ways. And a lot of people see that as dangerous.”39 Studies finding that children with parents in CNM relationships can thrive — and even gain access to additional benefits like greater financial resources and childcare — have not shifted this perception.40 In light of these consequences, CNM individuals may be reluctant to “come out” with their relationship status.41
C. Protections Provided by Multiple-Partner Domestic Partnership Ordinances
By recognizing multiple partners, ordinances like Somerville’s have the potential to reshape how the law deals with diverse family structures. First, multiple-partner domestic partnership ordinances may soften stigma.42 Massachusetts was the first state to recognize same-sex marriage in 2004.43 Since then, legalization has correlated with reduced implicit and explicit antigay bias.44 The ordinances may have compa-rable effects on discrimination against the CNM community. As Meeks observed, the ordinances may be valuable simply for affirming one’s relationship status: “I think a really important part of laws like this is just recognition and external validation.”45 While obtaining domestic partnership rights may not eliminate discrimination against CNM families, it can cultivate greater acknowledgment of and respect for them.46
The rights enshrined in multiple-partner domestic partnerships preserve the dignity of structurally diverse families while tangibly improving their lives. The ordinances not only can support CNM individuals but also can protect other families, such as couples co-parenting with sperm or egg donors.47 A partner may need to be covered by their nonlegal partner’s employer-sponsored health insurance or want to be with their loved ones in the hospital.48 Those registered under the Cambridge and Somerville ordinances will no longer face barriers to visitation rights in those places.49 City employees can extend insurance coverage to registered partners and will receive bereavement leave if one of their partners passes away.50 Partners may have trouble picking up their children at school if they are not legal or biological relations, but registration under the ordinance addresses this problem by providing legal recognition of the relationships.51 Proof of relationship status may facilitate travel, immigration, and naturalization for CNM partners with different citizenship statuses.52 These examples illustrate just a few ad-vantages that domestic partnerships can offer.
II. The Challenges to Passing These Ordinances
This Part first identifies which local governments can institute multiple-partner domestic partnership ordinances. It then anticipates legal challenges to such ordinances. Finally, it assesses the rights of people registered in places like Cambridge and Somerville when they move elsewhere.
A. Local Governments that Can Pass These Ordinances
Most states, including Massachusetts, have enacted “home rule” amendments or statutes,53 granting local government subunits the power to initiate legislation not specifically authorized by the state legislature.54 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.55 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.
Beginning in the 1990s, Massachusetts cities began enacting domestic partnership ordinances.56 Although elements of these statutes have been challenged, there has never been a legal challenge to a local gov-ernment’s ability to enact them in the state.57 But other state govern-ments have resisted home rule local governments’ decisions to recognize relationship statuses in the past. In 2004, Multnomah County, Oregon, decided to issue almost 3,000 marriage licenses to same-sex couples, but the state refused to register the marriages.58 The Oregon Supreme Court sided with the state.59 It held that the county lacked the authority to issue the licenses because state law “place[d] the regulation of marriage exclusively within the province of the state’s legislative power.”60 After the county’s decision, citizens around the state banded together to pass a ban on same-sex marriage.61 This cautionary tale suggests there may be similar opposition to passing a multiple-partner nondiscrimination ordinance even in home rule states with powerful progressive localities.
B. Challenges to Jurisdictions Adopting Similar Ordinances
In places where local government can enact multiple-partner domestic partnership ordinances, the two largest challenges are state criminal and civil statutes that might preempt the ordinances and antibigamy and antipolygamy statutes that states may apply to the ordinances. These hurdles are not insurmountable but merit careful consideration.
1. States’ Preemption of Multiple-Partner Domestic Partnership Ordinances. — Municipalities seeking to pass multiple-partner domestic partnership ordinances will have to navigate state preemption by criminal and civil statutes. For instance, California authorizes local governments to regulate domestic partnerships.62 But in In re Lane,63 the California Supreme Court held that an ordinance regulating sexual activity in public places between unmarried individuals conflicted with state law because “[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.”64 Given that California statutorily outlaws multiple domestic partners,65 a court likely would inval-idate, due to preemption, any multiple-partner domestic partnership ordinance passed by a California city or town.66
State preemption of local laws is on the rise, particularly in conservative states with progressive local governments that might consider pass-ing multiple-partner domestic partnership ordinances.67 Such states have enacted targeted preemption laws overturning LGBTQ+ rights ordinances or blanket preemption measures for all local laws.68 After the legalization of same-sex marriage, Arkansas passed the Intrastate Commerce Improvement Act69 requiring state uniformity for civil rights laws.70 Since Arkansas does not recognize sexual orientation in these laws, local governments are powerless to pass ordinances protecting LBGTQ+ individuals from discrimination.71 A state similarly may preempt domestic partnership ordinances by requiring uniform domestic partnership laws across municipalities.
2. Criminalization of Multiple-Partner Relationships. — Before municipalities pass polyamorous ordinances in D.C. and the three states that make multiple-partner domestic partnerships a felony, decriminalization may be necessary.72 In the forty-seven states that do not name domestic partnerships or civil unions in their antibigamy statutes,73 these ordinances can survive challenges brought under antibigamy statutes so long as multiple-partner domestic partnerships are distinguish-able from marriage. In Elia-Warnken v. Elia,74 the Supreme Judicial Court of Massachusetts held that an in-state marriage was void ab initio under the state’s antipolygamy statute because one same-sex spouse had an undissolved civil union in Vermont.75 The Vermont legislature had created civil unions that conferred on same-sex couples “all the same benefits, protections, and responsibilities under law . . . as are granted to spouses in a civil marriage.”76 The court applied comity principles to conclude that the Vermont civil union was equivalent to a marriage in Massachusetts.77 Unlike the civil union at issue in Elia-Warnken, the Somerville and Cambridge ordinances establish limited rights distinct from marriage, so they do not conflict with the state statute.78
Although the Supreme Judicial Court of Massachusetts likely will uphold the current ordinance, it may invalidate one from another state that guarantees all the benefits of marriage. In Elia-Warnken, the court noted that it would not extend recognition to an out-of-state marriage under the principles of comity if it “violates Massachusetts public policy, including polygamy.”79 Oregon and California have domestic partnership laws that parallel civil marriage in Massachusetts.80 So, Massachusetts may not recognize a multiple-partner domestic partnership ordinance passed in Oregon unless it specified fewer rights than marriage. Even state courts analyzing similar legislative histories may come to different conclusions about whether or not the intent of “domestic partnership” was for it to be like “marriage.” A New York court reviewing the same Vermont civil union statute in Elia-Warnken determined that a “civil union” did not equate to “marriage” in New York because the Vermont legislature displayed hesitance to extend the right to marry to same-sex couples.81 But a Pennsylvania court held that under comity, a Vermont civil union was the legal equivalent of marriage for dissolution under the Pennsylvania Divorce Code.82
C. The Legal Rights of People Registered in Cambridge and Somerville when They Move Elsewhere
It is unknown how comity doctrine will affect the rights of people participating in multiple-partner domestic partnerships. Nonuniform marriage laws — and in the past decades, domestic partnership laws — across cities, counties, and states have always presented quagmires for courts.83 Historically, there was a general presumption of marriage recognition.84 “Those rules dictated that states should generally recog-nize marriages that were valid where celebrated — the so-called ‘place of celebration’ rule — unless doing so interfered with an important public policy or interest of the destination state.”85 With the advent of same-sex marriage, states began eschewing this traditional rule to assert their public policy values.86 Determining whether the entities registered under local domestic partnership ordinances will receive the same rights in other jurisdictions requires navigating statutes, court rulings, and specific private and government policies. Comity might impact those registered under such ordinances via (1) the receipt or nonreceipt of benefits afforded to those in legally recognized relationships in other cities or states and (2) the potential invalidation of relationships recognized under the law in another city or state.
Some states have specified by statute whether they recognize other state and local jurisdictions’ domestic partnerships.87 New Jersey’s statute confers all the benefits of the domestic partnership from the place it was formed.88 Presumably, the Cambridge and Somerville ordinances would continue to confer benefits there.89 New York law recognizes limited rights like hospital visitation.90 Other states require out-of-state domestic partnerships to be “substantially equivalent” to their domestic partnership definition.91 Domestic partners registered under the ordinances would receive recognition there only if their municipal benefits aligned with marital ones.
For states that have not explicitly outlined their policies, court holdings may reveal what rights registered polyamorous partners may have in certain jurisdictions. Although case law is scarce, several child cus-tody precedents suggest that some state appellate courts will recognize domestic partners registered in another jurisdiction as the legal parents of their nonbiological children.92 Nevertheless, at least one court noted that such a finding under the principle of comity was a sign of goodwill and a grant of a privilege rather than a right.93 If the relationship went against the forum state’s public policy, the court would have not applied the sister state’s law.94 Because of antibigamy statutes, other states may claim that multiple-partner parenting controverts public policy and may not recognize these domestic partnerships. However, the nonenforcement of bigamy statutes in a jurisdiction may mean that public policy no longer leans against multiple-partner relationships.95
The Cambridge and Somerville ordinances require that municipal employers provide health insurance and other employee benefits to multiple partners.96 But, private and state employers are under no obligation to provide these goods to individuals that register.97 Some private employers have domestic partner plans that provide leave, parenting, travel, and relocation benefits.98 These were written for a single partner, so CNM domestic partners may have to choose which one the policy will cover. The ordinances cannot require private employers to offer insurance to domestic partners because the Home Rule Amendment prohibits local governments from enacting “private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power.”99 The Supreme Judicial Court of Massachusetts confirmed that cities do not have the power to extend state insurance laws due to the Amendment.100 Because the state does not give unmarried employees’ partners equal access to health insurance or permit employees to name unmarried partners as pension beneficiaries,101 those registered under the ordinance will not be able to secure these benefits through state insurance and will have to rely on city-provided benefits. To achieve widespread access to health insurance for multiple partners, advocates will need to enact change at the state or federal level.
III. Strategies for Next Steps
This Part evaluates advocates’ likely arguments to pass multiple-partner domestic partnership ordinances. Initially, advocates may take steps at the municipal level to protect these partnerships. Simultaneously, advocates may pursue decriminalization of bigamy through legislation or litigation. They might protect the ordinances by reducing criminal penalties for polygamy, asking state attorneys general to adopt a nonprosecution policy, or seeking the repeal of state antibigamy statutes. In the courtroom, they might pursue constitutional litigation to invalidate the statutes and protect the rights of CNM and other adults. First, they can cite the fundamental right to choose one’s partners, established in gay rights cases. Then, they can use the dissents in these cases to persuade courts that diverse family structures fall under these protections.
A. Municipal Strategies
To avoid multiple-partner domestic partnership ordinances being labeled as “marriage-like” and therefore bigamous, advocates must ensure that legal recognition does not overlap with a state’s marriage laws. To minimize confusion, they can note a desire not to equate domestic partnerships with marriage in the legislative history.102 They might review marriage laws not only in the state where they are passing the ordinances but also in other states to maximize the application of comity doctrine to the ordinance’s language. Finally, to protect those who register, advocates will have to ensure that passed ordinances are not repealed.
Municipal-level advocacy might focus on passing nondiscrimination ordinances to complement the multiple-partner domestic partnership ordinances. Individuals listed in a domestic partnership registry risk losing jobs, housing, or custody because they have no protection from discrimination.103 A relationship-status nondiscrimination ordinance would be a logical first piece of legislation to address that problem. Scholars and CNM individuals have argued that it may be preferable to emphasize solutions like hospital visitation registries to improve the lives of unmarried people,104 without an explicit focus on the legal recog-nition of CNM relationships. But approaches such as this may not destigmatize CNM partnerships as the multiple-partner or nondiscrimination ordinances would.105
Beyond ordinances, multiple partners may legally solidify their rela-tionships through contracting.106 Power of attorney decisions, end-of-life planning, and co-parenting can be coordinated in advance to prevent disputes. Multiple-partner families are already using contracting as an alternative to domestic partnerships.107 In Massachusetts and other states that allow three-parent families (usually to assist divorced couples and their new married partners),108 partners in CNM relationships may seek to adopt their nonbiological children to facilitate co-parenting.109 Nonetheless, not all benefits of marriage, such as healthcare and tax deductions, can be contracted, and courts may not always enforce contracts of multiple-partner entities. Advocates must pursue legislative and litigation strategies to secure rights for multiple-partner groups, as well.
B. State and Federal Strategies
There are both legislative and litigation-based solutions to state preemption, criminalization, or comity challenges to the ordinances.
1. Legislative Solutions. — To eliminate the threat of criminal penalties, organizers might push to repeal state antibigamy and antipoly-gamy statutes.110 In addition to paving the way for multiple-partner ordinances, these efforts may decrease stigma through public education campaigns about diverse family structures. According to a Gallup poll, since 2006, there has been a fourfold increase in the number of Americans reporting that polygamy is morally acceptable — from five to twenty percent.111 Thirty-four percent of younger Americans found it was morally acceptable.112 It may be possible to build on this momentum to decriminalize it.
Repealing antibigamy and antipolygamy statutes can also prevent harassment. This morals legislation echoes antisodomy laws, which were often secondary charges in criminal cases and not commonly levied as a sole charge against a defendant.113 Like with antisodomy laws, antibigamy laws can be used to deny equal treatment to CNM community members, to discredit them, to justify firing them, to limit their ability to raise children, and to argue against relationship-status nondiscrimination ordinances.114 Even if litigation deems these laws unconstitutional, people can use them to intimidate CNM individuals if they remain on the books. As recently as 2015, men having consensual sex were arrested under Lousiana’s antisodomy law long after the Supreme Court ruled such laws to be unconstitutional.115
Although improbable, groups recognized as legal domestic partners in Somerville or Cambridge may face criminal sentencing and jail time in another city or state if courts find their partnerships to be equivalent to marriage in that jurisdiction.116 This risk remains in states that define bigamy as not only marriage to a second person but alternatively cohabitation with that person.117 For instance, Colorado denotes bigamy as “[a]ny married person who, while still married, marries, enters into a civil union, or cohabits in this state with another person.”118 It is highly unlikely that the several states with these cohabitation laws both will view a domestic partnership with limited rights from another state as equivalent to marriage and will charge registered partners using underenforced antibigamy statutes.119 Nonetheless, drafters of ordinances should carefully review the language of these cohabitation requirements from other jurisdictions when crafting their domestic partnership laws.
Decriminalization may also help achieve justice for victims of nonconsensual relationships. Opponents of decriminalization may argue that antibigamy statutes are necessary to protect people, particularly underage women, from abuse.120 Supporters of antisodomy statutes made parallel arguments about protecting young boys from pedophiles.121 But like sodomy, bigamy is rarely the only charge brought against offenders.122 and 20th centuries, sodomy laws were used as secondary charges in cases of sexual assault, sex with children, public sex[,] and sex with animals.”). The criminalization of bigamy may even deter those in such a relationship from disclosing abuse because they face felony charges.123 Furthermore, there are more effective means to target harmful, nonconsensual behavior that do not punish consensual relationships like polyamory in the process.124
Other measures could curtail antipolygamy policies while advocates wait for the courts to vindicate multiple-partner domestic partnership ordinances. States may reduce criminal penalties for polygamy or ask state attorneys general to announce that they will not prosecute it. In 2020, Utah changed polygamy from a felony to a misdemeanor.125 A married person may take more than one spouse, with a small fine or community service, if all parties voluntarily enter the union.126 State legislators recognized that there are “otherwise law-abiding polygamists” who should not have to live in fear of being jailed or having their children removed.127 The Utah Attorney General also favored reducing the penalty to a misdemeanor because it would allow members of polygamous families to provide information about crimes without fear of being charged with a felony themselves.128 States could adopt this approach, which has the dual effect of preventing nonconsensual activity and not incarcerating those engaged in adult, consensual relationships.
2. Pursuing Constitutional Litigation. — Advocates for multiple-partner domestic partnerships can pursue constitutional avenues for legal recognition by following a path paved by LGBTQ+ advocates and using the language of dissents in major gay rights cases both in the U.S. Supreme Court and state supreme courts.
(a) The Unconstitutionality of Antibigamy Laws. — The 1862 Morrill Anti-Bigamy Act129 was the first federal legislation to outlaw polygamy in U.S. territories.130 Seventeen years later, the Supreme Court upheld the criminalization of polygamy in Reynolds v. United States,131 deeming it “odious”132 because it “fetters the people in stationary despotism.”133 But the same rationale used to strike down past morals legislation suggests that antibigamy legislation should be invalidated. For example, Bowers v. Hardwick134 — finding no constitutional protection for sodomy and allowing states to outlaw it135 — was overturned by Lawrence v. Texas,136 which held that a statute criminalizing sexual conduct between two people of the same sex was unconstitutional.137 This case and same-sex marriage cases offer a roadmap to ending antibigamy statutes.
State antibigamy statutes may violate the Due Process Clause because individuals engaged in CNM are adults with the liberty to choose whom to form relationships with.138 The opinion for the Supreme Court in Lawrence, written by Justice Kennedy, noted that it was demeaning to consider “homosexual conduct” as only the right to have intercourse.139 Likewise, CNM relationships often revolve around intimacy rather than sex alone.140 Antibigamy statutes, like sodomy statutes, “seek to control . . . personal relationship[s] that, whether or not entitled to formal recognition in the law, [are] within the liberty of persons to choose without being punished as criminals.”141 Obergefell v. Hodges142 further demonstrates that it may be a protected fundamental liberty for multiple people to pursue recognition through domestic partnerships.143 The ruling announced that the right to choose one’s relationships is inherent in individual autonomy.144 It emphasized that legal recognition encourages families to form and offers children greater resources, less stigma, and a more stable family life.145 These are objectives sought by those advocating for legal recognition of multiple-partner relationships.
Antibigamy statutes’ nonenforcement further undermines their validity. In Lawrence, Justice Kennedy looked to “a pattern of nonenforcement [of sodomy statutes] with respect to consenting adults acting in private”146 compared with the nontrivial stigma that the statutes imposed through criminal penalties on the few individuals charged.147 The antibigamy statutes share a similar history of criminalization without significant enforcement,148 particularly during the past half-century, the period that Justice Kennedy found to be most relevant to his analysis.149 Empirical evidence has shown that types of consensual nonmonogamy have been present in the United States for more than fifty years.150 This history, combined with research on the stigma faced by the CNM community,151 shows that these statutes no longer have value.
Lastly, antibigamy statutes do not further a “legitimate state interest which can justify [the state’s] intrusion into the personal and private life of the individual.”152 Consent was important for Justice Kennedy in determining whether or not there was a legitimate state interest in criminalizing sodomy.153 Emphasizing the consensual nature of these “relationship[s] of mutual support, caring[,] and commitment”154 in the ordinances will assist arguments that there is no longer a legitimate state interest in maintaining antibigamy statutes.155 Studies showing that CNM partners with high levels of mutual consent enjoy similar relationship quality as compared to monogamous partners156 may help make the case, as well.
The analogy between same-sex relationships and multiple-domestic partnerships is not a perfect one. From a regulatory perspective, the state may insist that it has an interest in administrability that justifies denying legal recognition to multiple partners.157 Legal infra-structures — such as property distribution in divorces or after deaths — are designed around two-partner families. Same-sex couples did not pose any challenge to this system.158 Still, an interest in administrability alone should be insufficient to overcome the constitutional interests described above.159 Sex-based discrimination arguments in same-sex marriage cases do not easily transfer to multiple-partner relationships, making equal protection claims more challenging. Scholars have observed that polyamory might be considered a sexual orientation and thus a suspect classification for an equal protection claim.160 If courts were to recognize CNM or polyamory as sexual orientations, they could provide protections against discrimination.161 But not all polyamorous individuals define it as their identity — for some, it is a social movement.162 Advocates may opt to sidestep this debate and focus on the aforementioned arguments about the fundamental right to choose one’s life partners.
(b) The Constitutional Right to Legal Recognition. — CNM individuals have expressed a desire for relationships that embody more transformative visions of intimacy outside the confines of marriage, even as they hope to access practical rights, which domestic partnerships may provide. 163 Still, some CNM families may find it degrading to receive a lesser status under the law than monogamous peers.164 But for both domestic partnerships and marriage, the argument that multiple-partner relationships should receive legal recognition and constitutional protections will face opposition.165 Despite acknowledging parallels in the struggle for rights, same-sex marriage advocates explicitly avoided supporting the CNM community for fear that it would hurt same-sex marriage.166 Concerns linger that legal recognition of multiple-partner relationships will derail hard-won progress, particularly in the context of a 6–3 conservative majority on the Supreme Court. 167 Nonetheless, using Justice Scalia’s and Chief Justice Roberts’s reasoning in their dissents from Supreme Court opinions establishing gay rights may strengthen the case for groups of consenting adults to choose whom they want to love and plan their lives with. If advocates deem this route too risky, they might pursue litigation in state supreme courts. 168
Justice Scalia invoked polygamy to advise against protections for gay people.169 In Romer v. Evans,170 he asserted that people married to multiple partners and gay people were analogous, except that “[p]olygamists” faced “much more severe treatment.”171 His dissent contended that Colorado’s amendment banning antidiscrimination protections for sexual orientation — which the Court labeled as “impermissible targeting” of a class — was less harmful than a nineteenth-century law that deprived people engaged in polygamy of the right to vote.172 For Justice Scalia, “[t]he Court’s disposition . . . suggest[ed] that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis.”173 Advocates might point to this opinion to argue that multiple-partner relationships deserve legal recognition and that the local level is an appropriate place to begin this process. In his subsequent dissent in Lawrence, Justice Scalia claimed that the Court’s ruling necessitated declaring morals legislation like antipolygamy and antiadultery statutes unconstitutional.174 He believed that the Court’s decision “effectively decrees the end of all morals legislation. If, as the Court assert[ed], the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”175 Thus, even if general approval for legal recognition of multiple-partner relationships remains low,176 antibigamy statutes would be unconstitutional per Justice Scalia’s reasoning.
Chief Justice Roberts’s Obergefell dissent also analogized between the ruling’s application to same-sex couples and its application to polyamorous people.177 Abandoning Justice Scalia’s condemnation, the dissent probed the Court’s unwillingness to extend the fundamental right to marry beyond same-sex partners when the Court’s reasoning would apply with “equal force” to multiple partners.178 The dissent noted that both forms of consensual relationship are subject to stigma.179 And if one form deserves dignity, so does the other.180 Polyamorous people seek out intimate bonds, strive to be caring parents, and must prove they are not lesser because of whom they love.181 This portrayal, even when used as a counterpoint, suggests that courts ought to protect multiple-partner relationships.
Finally, state constitutional law may support these ordinances. For example, in Kerrigan v. Commissioner of Public Health,182 the Supreme Court of Connecticut held that laws restricting marriage to heterosexual couples violated same-sex couples’ equal protection rights under the state constitution.183 One of the dissents argued that “if [the] consensual, loving commitment among adults is the essence of marriage, then the state has no basis for prohibiting polygamous marriage.”184 It rejected the plaintiffs’ argument that same-sex marriage and multiple-partner marriage were substantively different because marrying more than one person would require restructuring civil marriage.185 These logistical challenges — addressable by “minor changes” in the law — did not defeat the “fundamental right.”186 The Cambridge and Somerville ordinances further illustrate that such adjustments are possible.
Although domestic partnership ordinances like those in Somerville and Cambridge by no means represent the only option to decrease discrimination and stigma against CNM partners, they advance these objectives. Ordinances recognizing diverse relationship statuses also serve practical purposes such as improving outcomes in family law and healthcare. In fighting for access to domestic partnerships, advocates may change the way that courts, legislatures, and the broader public understand CNM. By employing the arguments outlined in this Note, advocates have the opportunity to affirm that three’s company, too.