Obergefell’s Legacy: Polygamy and the Future of Marriage Jurisprudence
Less than a decade after the landmark ruling of Obergefell v. Hodges (2015) affirmed the right to same-sex marriage, a New York City judge deciding a rental dispute argued that Obergefell’s “problem” is that it did not go far enough. In September of 2022, Judge Karen May Bacdayan presided over West 49th St., LLC v. O’Neill (2022, a housing court case concerning three men: Markyus O’Neill, and the married couple Scott Anderson and Robert Romano). The three asserted that they were in a multi-partner relationship. In her decision, Bacdayan held that the three men could possess a “family-like relationship” that would legitimize the ability of O’Neill, the unmarried third partner, to renew the lease on a rent-controlled apartment in Anderson’s name. Bacdayan’s argument relied heavily on the precedent set by both Obergefell and its predecessor, Braschi v. Stahl Associates Co. (1989); she simultaneously praised both decisions for “open[ing] the door for consideration of other relational constructs'' and condemned them for their adherence to a “majoritarian, societal view” that refused legitimacy to multi-person unions [1]. Despite her references to these precedents, Bacdayan ultimately understates the degree to which the logic of Obergefell is fundamentally compatible with her expanded definition of family structure.
While Bacdayan notes in her decision that Obergefell’s precedent allows for a broader understanding of marriage and relationships, she does not explicitly engage with the Obergefell opinion to defend her position that multi-person relationships should be respected. Instead, she cites Justice John Roberts’ dissent in Obergefell, in which he condemns the majority’s inability to distinguish between the “two-person element” of marriage and the “man-woman element.”[2] For Bacdayan, this dissent is both prescient and alarmist: she writes that “the time has arrived” to abolish this distinction that she and Justice Roberts agree is arbitrary and normative [3]. For Roberts, the fragility of the distinction is a failing of the Obergefell opinion; for Bacdayan, it heralds the arrival of more inclusive marriage jurisprudence. Bacdayan’s implicit claim, grounded in the logic Roberts presents in his dissent, is correct; the Obergefell majority can just as reasonably apply to polyamorous relationships as to same-sex ones.
Crucial to the Obergefell decision are four key principles used by the Court to justify the equal application of the constitutional right to marriage to same-sex couples: individual autonomy, the right to intimate association, the protection of children and families, and marriage’s fundamental significance to social order [4]. While Bacdayan does not explicitly engage with these premises, her general analysis of the opinion recognizes that none of these premises compellingly defend the exclusive application of the right to marry to two-person unions. The first, individual autonomy, emerges from what the Court describes as the “abiding connection between marriage and liberty,” and produces the right to “personal choice regarding marriage.”[5] Notably, this choice can be afforded to an individual entering a multi-person partnership just as easily as it can to an individual in a two-person union. The second premise cites the importance of marriage to “committed individuals.”[6] Here, commitment and the desire for marriage’s legitimation of a partnership are characteristics that are non-exclusive to monogamous individuals. Third, the Court affirmed that affording the right to marry to same-sex couples “safeguards children and families” from stigma and material costs of existing within an unrecognized family structure. Furthermore, the right to marry must apply equally to those without children or the capacity to procreate [7]. Just as the marriage laws considered in Obergefell were found to “harm and humiliate the children of same-sex couples,” so too could the existing prohibitions against polyamorous unions impart suffering upon the children of such unions. The final principle the Court cites as crucial to justifying its broadened understanding of the right to marry is the concept of marriage as a “keystone of the Nation’s social order.” The Court references the aspiration of same-sex couples to the “transcendent purposes of marriage,” an aspiration that may be shared by their polyamorous counterparts [8]. Obergefell’s justification for the expansion of our constitutional understanding of the right to marriage largely sidesteps the specific dimension of sexual orientation and instead focuses on marriage as a fundamental right. Its insistence on equal application allows for an even more expansive conception of marriage, one that may reasonably apply to multi-person unions.
A legal assessment of multi-person unions that does not accept and extend Obergefell’s logic might be unsatisfied by the analysis critiqued by Roberts and furthered by Bacdayan. It could be argued that the right to marry multiple persons must be narrowly defined and specifically defended, a defense that would require comprehensive proof that multi-person unions are crucial to the nation’s culture and history. However, as Bacdayan states in reference to Roberts’ dissent, the narrow reading of the right to marry multiple persons is not, by legal precedent, fundamentally distinct from the right to marry a person of the same sex. Indeed, the Obergefell opinion itself contradicts this narrow logic, instead opting to adopt a flexible, broad understanding of the right to marry “in the comprehensive sense.”[9] Obergefell makes reference to several other cases of marriage jurisprudence as exemplary cases of the theory that the right to marry, widely understood, is protected by the Constitution: just as Loving v. Virginia overturned bans on interracial marriage and Turner v. Safley allowed prisoners the right to marry, so too, Obergefell argues, must same-sex persons be allowed the same fundamental right [10].
Given Obergefell’s refusal to accept narrow applications of the right to marry, what does this mean for future marriage-focused jurisprudence? In the absence of compelling distinctions between multi-person and same-sex unions in Obergefell, Bacdayan hints at the possibility of an increasing reliance on evidentiary metrics, or specific criteria designated for legal assessments of the validity of committed unions. In her decision, Bacdayan relied heavily on the logic presented in Braschi v. Stahl Associates Co. (1989), a New York Court of Appeals case that affirmed the legitimacy of a same-sex relationship and held that appellant Miguel Braschi would be allowed possession of his deceased partner’s rent controlled apartment. Braschi included in its assessment of the union in question a list of evidentiary factors that, while not solely determining, contributed to the assessment of the relationship’s validity and application to protection under the law. The list included “longevity of the relationship,” “regularly performing family functions,” and “relying upon each other for payment of household or family expenses” as possible considerations for measuring the committedness and legitimacy of a relationship [11]. Bacdayan’s 2022 ruling is notably similar to the Braschi case, which preceded Obergefell in expanding the definition of marriage in specific reference to rent-control, a similarity which seems to portend the ascension of polygamous marriage law into higher courts. Braschi, like the 2022 ruling, set an important relationship recognition precedent for marriage jurisprudence with crucial implications for the later Obergefell decision. This kind of legal relationship legitimation can evidently be an important legal precursor to an institutionalized expansion of the right to marriage. The silence of Obergefell on the possible application of its principles to multi-person unions demands a framework for assessing valid unions beyond the opinion’s limited principled requirements. As Bacdayan’s “more inclusive interpretation” of a legitimate relationship emphasizes metrics rather than principles, perhaps a broad “right to marry” counterintuitively makes the particulars of specific relationships all the more relevant to jurisprudence [12].
Bacdayan, in characterizing her opinion as an extension of Obergefell’s logic, understated the ease with which the principles outlined in the Obergefell opinion apply to polygamous unions. The broad understanding of relationships and marriage presented in the ruling, as well as the case’s parallel to the 1989 Braschi case, will force jurists to consider the implications of adopting a flexible interpretation of marriage in line with Obergefell’s precedent, or, apprehensive of institutionalized polygamy, contradict Obergefell and decide to adopt a narrow interpretation of the right to marriage.
Bibliography
West 49th St., LLC v. O’Neill, 76 Misc. 3d 459 (N.Y. Civ. Ct. 2022)
Obergefell v. Hodges, 576 U.S. ___ (2015)
76 Misc. 3d 459 (N.Y. Civ. Ct. 2022)
576 U.S. ___ (2015)
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (N.Y. 1989)
76 Misc. 3d 459 (N.Y. Civ. Ct. 2022)