Earlier (2011) Polygamists Sue Using Gay Marriage Logic
Over the last few years, I’ve been predicting that the Next Big Thing following World War G (gay marriage) and World War T (transgender mania) will be World War P (polygamy). Now a judge in yet another one of these New York City rental lawsuits has ruled that “majoritarian animus” about marriage not being among more than two people is the unacceptable explanation for why the Obergefell gay marriage decision restricts marriage to two homosexuals.
Way back in 1989, the gay marriage juggernaut got launched over a tawdry New York City rent control imbroglio. A rent-controlled tenant died without spouse or issue (rent control status is hereditary in New York), so the landlord was going to raise the rent, but then the dead lessee’s roommate announced that he deserved to continue to pay the rent-controlled rent because they were more than just roommates.
Now, we’ve seen a similar NYC rental dispute that might launch the polygamy trend of the 21st century. From the Volokh Conspiracy in Reason:
A New York trial court judge concludes that polyamorous relationships are entitled to the sort of legal protection given to two-person relationships.
EUGENE VOLOKH | 9.24.2022 11:03 AM
The decision is yesterday’s West 49th St., LLC v. O’Neill, decided by New York Civil Court Judge Karen May Bacdayan. Scott Anderson and Markyus O’Neill lived together in an apartment; Anderson was on the lease, and O’Neill was not. After Anderson died, O’Neill would have had the right to renew the lease if he were “a non-traditional family member,” but Anderson was married to Robert Romano. The apartment building company therefore argued that O’Neill was just a roommate, but the court concluded that there needed to be a hearing about whether Anderson, Romano, and O’Neill were actually in a polyamorous relationship:
Romano, who was gay married to Anderson, and O’Neill, who lived with Anderson, hated each other. But, love is love, so whaddaya whaddaya?
Before gay marriage was legalized in any state, Braschi v Stahl Assocs. Co. (N.Y. 1989) was decided. The New York State Court of Appeals became the first American appellate court to recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition, and that the nontraditional family member is entitled to receive noneviction protections. The Braschi court interpreted the Rent Control Law in effect at a time when there was no legal recognition of same-sex marriage, and broadly construed the law to effectuate its remedial purposes.
Braschi is widely regarded as a catalyst for the legal challenges and changes that ensued. … However, Braschi and its progeny and Obergefell limit their holdings to two-person relationships. The instant case presents the distinct and complex issue of significant multi-person relationships.
… Why then, except for the very real possibility of implicit majoritarian animus, is the limitation of two persons inserted into the definition of a family-like relationship for the purposes of receiving the same protections from eviction accorded to legally formalized or blood relationships?
In Our Democracy, the fact that most people are for something, such as defining a marriage to involve two people, is proof of sinister unconstitutional animus.
Is “two” a “code word” for monogamy? Why does a person have to be committed to one other person in only certain prescribed ways in order to enjoy stability in housing after the departure of a loved one? Why does the relationship have to be characterized by “exclusivity”? Why is holding each other out to the community as a family a factor? Perhaps, as in the instant case, the triad has chosen to closet their relationship from others? Perhaps the would-be successor is not “out”. Maybe they do not believe their “real” family is open to alternative kinds of relationships. “Holding out” discounts the existence of prejudice and misunderstanding about communities and people that are not “normie.” Do all nontraditional relationships have to comprise or include only two primary persons?
Indeed, the Braschi court’s referral to “normal familial activities” reveals an intent to limit the application of noneviction protections to someone who can demonstrate a traditional marriage but for their sexual orientation. …
However, what was “normal” or “nontraditional” in 1989 is not a barometer for what is normal or nontraditional now. Indeed, the definition of “family” has morphed considerably since 1989. Specifically, many articles have been written about multi-person relationships in recent years, revealing a preference that for some has long been known. For example, a recent article from The New Yorker magazine describes the broadening recognition of such relationships and how these relationships are challenging the norm:
“In February 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who ‘consider themselves to be a family’ to be recognized as domestic partners….[T]he neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. … American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?” { The New Yorker magazine, March 22, 2021 issue, How Polyamorists and Polygamists Are Challenging Family Norms. See also Polyamory and the Law, Harvard Law Today, August 3, 2021, available at https://hls.harvard.edu/today/polyamory-and-the-law/.}
This begs the question:
Even judges don’t know what “begs the question” means anymore.
Should a person who would not meet the requirements for succession to a rent stabilized apartment after Braschi was decided in 1989, now, 33 years later, be evicted when they may qualify, as was the concluded in Braschi, under a more inclusive interpretation of a family?
… In sum, the problem with Braschi and Obergefell is that they recognize only two-person relationships. Those decisions, while revolutionary, still adhered to the majoritarian, societal view that only two people can have a family-like relationship; that only people who are “committed” in a way defined by certain traditional factors qualify for protection from “one of the harshest decrees known to the law—eviction from one’s home.”
Those decisions, however, open the door for consideration of other relational constructs; and, perhaps, the time has arrived. As Justice John Roberts foretold in his Obergefell dissent:
“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage…. If not having the opportunity to marry serves to disrespect and subordinate gay and lesbian couples, why wouldn’t the same imposition of this disability … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships (internal quotation marks and citation omitted)?” …
Here, Mr. Anderson, Mr. Romano, and Mr. O’Neill had a relationship to one another. There was knowledge of all persons about the others and, at least, passive consent, even if they did not all like each other. Was the relationship a “good” one? Mr. Romano describes Mr. O’Neill as “intimidat[ing],” and Mr. O’Neill describes Mr. Romano as “abusive.” It seems equally as unimportant as considering sexual relations to delve into the level of happiness in a relationship. Is one stripped of their rights to “marital property” on the basis of having a “bad” marriage? Would noneviction protections not devolve to an emotionally abusive spouse?
