U.S. Family Law Along the Slippery Slope: the limits of a sexual rights strategy for polyamorous parents

Abstract

Families in the United States are rapidly changing, and the normative familial model of two married, monogamous, heterosexual parents with children no longer reflects the majority of U.S. families. Nonetheless, state incentive-based policies and discriminatory family laws continue to enforce heteronormative monogamy. Recent changes to the U.S. legal landscape have produced limited formal recognition and protections for same-sex couples and LGBTQ parents, and even these narrow rights are withheld from other diverse familial configurations including families with polyamorous parents. This article uses the concept of sexual citizenship to frame the analysis of U.S. family courts’ normative construction of family, identifying striking parallels between family courts’ historical and contemporary prejudicial treatment of LGBTQ parents and the institution’s similar delegitimization and denigration of polyamorous parents today. This paper reviews polyamorous parents’ efforts towards achieving legal and societal legitimatization, finding significant parallels with legal strategies LGBTQ parents utilized to seek legal recognition and protection prior to federal recognition of same-sex marriage. This paper highlights the inadequacies of such a formal sexual citizenship approach, finding that a limited strategy of accumulating specific sexual rights fails to address non-monogamy’s more radical cultural presence as well as the (non-legal) informal aspects of belonging needed to improve the livability of polyamorous parents’ and their children’s lives. This paper concludes with recommendations for improving the treatment of non-traditional families including LGBTQ, polyamorous, and other blended families, both within and outside the legal institution.