Academic journal article Emory Law Journal

Should Civil Marriage Be Opened Up to Multiple Parties?

Academic journal article Emory Law Journal

Should Civil Marriage Be Opened Up to Multiple Parties?

Article excerpt


In this Essay, we argue that civil marriage should not be opened up to multiple parties. Our focus is on civil, not religious, marriage, and we address polygamy in general, rather than any particular form of it. We highlight the important distinction between opening up civil marriage to multiple parties on one hand and recognizing valid foreign polygamous marriages on the other. We contemplate how a country can coherently recognize valid foreign polygamous marriages, while at the same time decline to open up civil marriage to multiple parties.

We distinguish decriminalization of polygamy, which we advocate, from opening up civil marriage to multiple parties. We then explain why we believe the rights of children should be a non-issue in deciding whether civil marriage should be opened up to multiple parties.

We consider the state's continuing interest in marriage in the context of changing social norms and legal developments and conclude that there is a compelling state interest in preserving and supporting civil marriage as a monogamous institution.


We formulate the symposium question as whether to open up civil marriage to multiple parties. We have three reasons to formulate the question this way. First, we intend to signal that we address only civil marriage law and not religious law in this Essay. The marriage and divorce laws of the various religions are not changed by amendments to the state's civil laws. In our country, Canada, civil marriage has been opened up to same-sex partners,1 and divorce is available on the basis of separation of the spouses for one year.2 Nevertheless, adherents to faiths with marriage and divorce laws that differ from the civil law may refrain from entering into a same-sex marriage or seek a religious as well as a civil dissolution of their marriage. And the civil law does not affect religious law or the ability of adherents to submit themselves to that law.

The civil law does, however, prevent parties from entering into polygamous marriages, and this prohibition applies equally to adherents of faiths that permit polygamy. The marriage laws of monogamous countries such as Canada and the United States do not permit polygamy. A legally married person cannot take an additional spouse unless the existing marriage is dissolved by death or divorce. The result of a legally married person going through a form of marriage with a third party is a legal nullity. Furthermore, parties to polygamous "marriages" may be subject to criminal sanctions.3 Thus, opening up civil marriage to multiple parties (and presumably repealing criminal sanctions against polygamy) would enable some religious adherents to practice polygamy in accordance with what is permitted by their faith. But, as we have noted above, it would not change any religious laws.

A second reason for our particular formulation of the question is to emphasize that we do not address any particular existing forms of polygamy. Countries that permit polygamous marriages do so in accordance with particular religious or customary laws, most of which allow men to take more than one wife.4 Given the principle of sex equality and prohibition on sex discrimination,5 it is very unlikely that Canada or any other Western country would introduce any of these religious or customary forms of polygamy. Rather than considering whether any existing form of polygamy should be adopted, we discuss whether multiple parties of any sex or combination of sexes should be permitted to enter into a civil marriage.

Finally, our formulation of the symposium question avoids any reference to "recognizing" polygamous marriages. By doing so, we hope to avoid any confusion between opening up civil marriage to multiple parties on one hand and, on the other hand, recognizing valid foreign polygamous marriages. We have argued elsewhere that recognition of valid foreign polygamous marriages should be continued and indeed expanded. …

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