Protecting Polyamory: Municipalities expand rights, domestic partnerships to include nontraditional relationships
Willie Burnley Jr. sits on the city council in Somerville, Massachusetts. What he calls “doing well by his community” looks different from the average municipal legislator voting to expand park space or increase recycling.
Burnley, who is openly polyamorous, seeks to reduce discrimination for those who practice polyamory or consensual nonmonogamy. In March, he introduced and passed through the city council three anti-discrimination bills, and expects to pass a fourth in April, focused on protecting housing and employment rights for polyamorous people. They are the first such bills ever passed in the United States.
Burnley was in a multipartner relationship when the city council passed a first-in-the-nation ordinance in 2020 expanding domestic partnerships to include relationships with more than two people. After Somerville, two other Boston suburbs, Cambridge and Arlington, also expanded domestic partnerships to polyamorous people in 2021 and 2022, respectively.
“I was amazed and a little shocked,” Burnley says of the milestone, which in part inspired him to run for office. “It was one of the proudest moments I’ve had about our government.”
Burnley hopes his bills encourage people in nontraditional relationships to register for domestic partnerships and to be more open about their status without fear of retaliation. The expanded domestic partnerships don’t feature all the legal benefits of marriage but do include hospital visitation rights and shared employment benefits.
Polyamory is a slightly narrower form of consensual nonmonogamy in which people agree to have multiple, loving relationships openly and with full consent. Structure and agreements vary widely.
A 2014 Chapman University study found that between 4% and 5% of people in the U.S. are involved in a consensually nonmonogamous relationship, and a 2021 Frontiers in Psychology study estimated that that one in nine Americans have practiced it at some point in their lives.
There’s little legal precedent aimed at protecting people in nontraditional relationships. But advocates are gaining ground at the municipal level by expanding domestic partnership laws and definitions of protected classes. Those against this momentum say the movement weakens traditional definitions of marriage.
Diana Adams, a New York family law attorney and one of the founders of the Polyamory Legal Advocacy Coalition, believes hospital visitation rights and health insurance benefits should extend to nontraditional relationships, whether it’s a romantic triad or a multigenerational household raising a child.
“In 2023, when the majority of American children and adults don’t live in a heterosexual nuclear family,” Adams says, we need laws “to protect and value families as they exist, so we don’t need to worry about losing our job or custody of our child because of how we build family.”
Of the Somerville bills passed, one expands the definition of protected class to include people in relationship structures involving multiple partners; the second and third bills amend existing anti-discrimination ordinances regarding city employment and policing to include this new protected class. A fourth bill would prohibit housing discrimination based on that same protected class.
The rights of people in nontraditional relationships also got a boost in September when Judge Karen May Bacdayan of the Civil Court of the City of New York, New York County, ruled in favor of petitioner Markyus O’Neill—a third partner to married couple Scott Anderson and Robert Romano—who sought to renew a rent-controlled apartment lease after the tenant of record, Scott Anderson, died. The wording of Bacdayan’s ruling in West 49th St. v. O’Neill—which allows the case simply to proceed—might offer precedent in other higher court cases, according to legal scholars.
Polygamy vs. polyamory
Often confused with polyamory, polygamy—marriage between more than two people—has a long, complicated history in America, particularly among members of the Church of Latter Day Saints. Traditionally a practice that has involved men marrying multiple wives, polygamy has been prohibited nationwide since 1879, when the U.S. Supreme Court ruled in Reynolds v. U.S. that polygamy is not a constitutionally protected religious practice.
Views on the criminalization of polygamy have shifted, mostly recently in 2020, when Utah passed a law reducing polygamy from a third-degree felony to an infraction subject to a fine and community service.
Those supporting decriminalization say the new law encourages women in abusive polygamous marriages to report crimes without fear of prosecution.
“I can certainly understand how making polygamy a felony keeps some things in the dark from coming out; things that we need to deal with, particularly abuse,” says Alan Hawkins, a professor and director of the School of Family Life at Brigham Young University.
But Hawkins says expanding domestic partnerships to polyamorous people threatens to trivialize the institution of marriage. “I have real concerns about us turning a crucial social institution like marriage into a Sunday smorgasbord,” Hawkins says.
“We are at risk—culturally and legally—of monogamy becoming a continuously negotiated agreement between partners rather than universally understood axiom of marriage,” wrote Hawkins in a Deseret News article responding to Somerville’s bills.
Adams acknowledges, “While I personally wouldn’t be interested in being in the gendered polygamy that we see today, I do think that it’s important that we allow people the freedom to create family as they wish, as long as everybody has informed consent.”
Those opposed to same-sex marriage have long made the “slippery slope” argument, implying that legal recognition of multipartner relationships was around the corner. In his dissenting opinion in Obergefell v. Hodges, Chief Justice John Roberts speculated, “Why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?”
Addressing similar concerns, the 2022 Respect for Marriage Act, which federally recognizes all same-sex and interracial marriages, included an amendment prohibiting polygamy or partnerships of more than two.
Polyamory in practice
Burnley drew inspiration from the ABA’s October 2022 webinar, “Emerging Legal Recognition for Multi-Partner Relationships and Families,” which featured attorneys discussing issues facing their polyamorous clients.
Adams, who spoke on the ABA panel and testified at Somerville’s council meeting, has heard countless stories of discrimination. People in the polyamorous community come to her upset about employment discrimination, for example, “and don’t realize that polyamory is not protected,” Adams says.
For family law attorneys defending polyamorous parents, Adams advises they focus on parenting rather than sexuality. “Get, when possible, a supportive forensic psychologist to interview each of the parents and defend the family system to make it clear that your client is behaving absolutely appropriately, and that their relationship style is not in any way negative to the child,” Adams says.
Andy Izenson, a New York attorney and legal director of the Chosen Family Law Center, agrees, saying it’s critical to draw attention to how involved a parent is, rather than their relationship status. “Which parent is actually able to attend to the child’s needs? Who brings them to the pediatrician and picks them up from school?”
Izenson hopes courts will recognize a more expansive definition of a family member, noting that much of society is focused on what married couples can do, whether sharing health insurance, living together or raising children. “[This] excludes everyone whose life has been set up in a different way,” Izenson says.
The most influential cases establishing the rights of people who practice polyamory or consensual nonmonogamy, according to Boston-area attorney Kimberly Rhoten, are generally appeals court rulings overturning parental custody rulings.
A paper co-authored by Rhoten in the winter 2021 issue of Cornell Journal of Law and Public Policy counters the notion that polyamorous people are unable to meet best-interests-of-the-child standards.
It references a number of lower court cases against polyamorous parents that were reversed on appeal, including a 2015 case in which the Court of Appeals of Georgia (In the Interest of R. E., 333 Ga. App. 53, 775 S.E.2d 542) overturned a lower court ruling that withheld a mother’s custody because she was polyamorous. The appeals court found no evidence that the children were harmed by their mother’s polyamory.
Rhoten notes that polyamorous families are just one type of legally marginalized nontraditional structure. “This includes single-parented families, multigenerational households and stepfamilies that struggle to be treated equally by the law as their married dyadic-couple counterparts.”
The Uniform Law Commission—a nonprofit advocacy group—urges passage of the 2017 Uniform Parentage Act in all 50 states, which provides an opening to redefine parent-child relationships. Changes center around the definition of “de facto” parents as contributors to the best interest of a child, opening the door for additional nonbiological or nonlegal parents, so long as they reside with the child, serve as a caretaker and have “established a bonded and dependent parent-child relationship, with at least one legal parent’s approval.”
Six states—including California, Maine, Connecticut and Washington—have passed versions of the act, which includes children of same-sex couples in its definitions.
Lawmakers in Berkeley, California, are also considering municipal anti-discrimination legislation akin Massachusetts’ measures.
As for Burnley, he says he’s extremely excited to be part of historic firsts. “The ethical thing to do as an elected official is expand our community’s conversation and inclusivity.”
Andrew Engelson is an award-winning freelance journalist and editor who, in a career spanning more than two decades, has covered topics ranging from climate change to LGBTQ issues. His work has appeared in Super Lawyers, Crosscut, Hakai, Investigate West, The Seattle Times, High Country News and many other publications. He lives in Seattle.