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« The Crisis of the Family | Main | National Defense and Jobs »

08/12/2010

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Polly Ester

So much here to unpack. The State can't allow poly-unions without massive rework of many legal regimes that count on dyads only. Pension laws, insurance, inheritance, etc. Even tort law allows wrongful-death or loss of consortium claims to just one spouse. Paying social security to all six widows would bankrupt the system even faster.

At most, you could allow some special second-tier status to the extra spouses/partners, but only one primary one. Or you could instead amend ALL of the laws built around the dyad, but I don't see that happening.

As for current law, I fail to see how the government can prohibit de facto polygamy, or group cohabiting, as long as only one marriage seeks civil recognition. How is a fundamentalist Mormon family different legally from Hugh Hefner and his 3 or 4 live-in girlfriends? It can't be illegal to live in a communal house with many friends and their kids and pool resources. Is it the sex? Can consensual adultery be criminalized?

Seems to me that the only things prosecutable are fraud on outsiders, such as holding yourself out as a wife, and thus procuring credit or something based on the relationship.

More later.

Bob Hockett

Great observations, Polly - many thanks.

Though I lack expertise and am accordingly just musing aloud with this post, I can certainly appreciate that the consequences of state-sanctioned n-ary unions throughout multiple bodies of law might be far-reaching indeed. I'm not sure that they need be intractible or unmanageable, however.

The n-1 remaining members of a p'ship group might be treated as 1 by existing laws, for example, where sundry benefits following on loss of a partner are concerned. This would correspond, more or less, to the law's current treatment of business p'ships in most states (those that have adopted the '97 UPA) more or less as entities, which hold assets in their own names. The benefits would then be a bit like a joint savings account, the rights to draw upon subject to what ever governance arrangements have been agreed upon by p'ners in advance. Absent such agreement, the default rule might well be that found in the aforementioned business p'ship context, with the p'ship bearing the ownership right, and the p'ners all bearing identical rights of disposition. Something like this might work for inheritance, pension, insurance, SSI and related regimes.

As for loss of consortium, I find the existing regime screwy and arbitrary in any event. The presence of many indirectly harmed lovers in the face of a loved one's wrongful death ought to be viewed along 'thin skull rule' lines, it seems to me, quite apart from the rules governing marriage. But if changing the rules here isn't on the cards, then it would seem to me that the n-1 p'ners might sue in loss of consortium as a sort of class, proxied-for by one representative person. What ever proceeds are awarded in court then would awarded the ongoing p-ship as a continuing entity, along the lines mentioned just above.

As for the criminal law matters you mention, it seems to me that you're right - at least insofar as presentday law is concerned. (Alas, it wasn't always thus, and Mormons with long memories - not to mention the ghosts of the Cathars, were they existent and talking - doubtless could say graphically why.) I nevertheless think there could be value in formal state-recognition even in this realm, however. For it surely would at least partly remove the taint of state-stigmatization that still seems to hover about communes and 'alternative living arrangements' and so forth.

That is the legacy of our once having fallen even further short of our own professed liberal aspirations than we do now. A nice way at least partly to erase that, I suspect, would be for us as a society, through our state apparatus, formally to recognize as 'legit' all harmless domestic arrangements that people freely enter into. We do it for businesses, after all. I'm tempted to say we should do it for families - as these understand themselves - as well.

Thanks again,

Bob

Jimbino

How about a partnership of one person. It is the singles (including single mothers) that have so much to lose by increasing the numbers of couples who will be feeding at the public trough of over 1000 special benefits ranging from tax and inheritance to healthcare and immigration privileges.

I propose a Constitutional amendment outlawing all mention of sex, marital or family status in all laws of the land. There will be no justice until this is done; all this talk of extending the benefits of marriage to gays skirts the real issue.

Bob Hockett

Thanks, Jimbino.

In enterprise-organizational law, we call the form that you have in mind a 'sole proprietorship.' The law does not tend to privilege firm forms by reference to the number of constituents, and I'm certainly open to argumentation that it ought not to do so in respect of living arrangements either. I can anticipate neutral arguments in favor of benefitting multiperson families - which would include single parents with children - in certain ways: for example, by dint of their sparing the public fisc the costs of orphan-rearing. But the important point would be that neutrality itself - the principle that all members of the society in question must benefit by any public measure that confers benefits upon any particular form of living arrangment.

On your constitutional amendment suggestion, my guess is that a creative lawyer could do all the work you would like to see done here simply by appeal to the Equal Protection Clause of the 14th Amendment. The difficulty of course would be getting all the bigoted rightwing judges to buy the requisite interpretation. But this might be less difficult than securing a new Amendment - at least an Amendment that does not itself cater to bigotry.

True Religion Jeans

No, problem. Sorry I didn't respond earlier. I was wondering what your views were, because I don't know anyone who practices this model or has any interest/knowledge in it, so I can't really ask what they think; and I appreciate you answering my questions. Like you said it would benefit me to have my own projector but it would be very costly and a hassle.

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