10 January 2017


Having just written a book chapter on heteronormativity and the 'first year law school experience' I was interested to encounter  'Marriage, Law and Polyamory. Rebutting Mononormativity with Sexual Orientation Discourse?' by Christian Klesse in (2016) 6(6) Oñati Socio-legal Series 1348-1376.

Klesse's paper
traces the genealogy of sexual orientation discourse in US legal scholarship and explores potential drawbacks of the articulation of a sexual orientation argument in the field of relationship recognition. After a long period of refraining from campaigning for legal recognition of multi-partner relationships, polyamory activists have recently shown a stronger interest in litigation. This paper identifies reasons for this shift in recent successes of the campaign for same-sex marriage rights and critically discusses proposals to frame polyamory as a sexual orientation to achieve multi-partner marriage rights through litigation. I argue that advocating a sexual orientation model of polyamory is likely to reduce the complexity and transformative potential of poly intimacies, limit the scope and reach of potential litigation, obstruct the capacity of poly activism to form alliances and increase the likelihood of poly activism to settle for legal solutions (i.e. marriage) that are exclusive and reproductive of a culture of privilege.
Klesse states
In this paper I will discuss the potential drawbacks for polyamory activism of framing polyamory as a sexual orientation in order to advance recognition of multi-partner relationships and families by the law. Sexual orientation discourses have been strengthening alongside identity political strategies across various terrains of poly activism in North America and Europe. The question of whether polyamory can be understood to be an immutable and possibly inborn personality trait analogous to traditional notions of sexual orientation based on gendered ‘object choice’ has also become a subject for contemplation by legal scholars working in the fields of human rights, anti-discrimination and family law. This paper traces the genealogy of sexual orientation discourse in US legal scholarship and explores potential drawbacks of the articulation of a sexual orientation argument in the field of relationship recognition. The paper argues that advocating for a sexual orientation model of polyamory would reduce the complexity and transformative potential of poly intimacies, limit the scope and reach of potential legal litigation, obstruct the capacity of poly activism to form alliances and increase the likelihood of poly activism to settle for legal solutions (i.e. marriage) that are exclusive and reproductive of a culture of privilege.
The structure of the paper is as follows: The first part traces the emergence of sexual orientation discourse with regard to polyamory in influential US legal studies publications in the first decade of the 21st century. In the second part, I discuss changes in the relationship of poly communities to the politics of marriage. I interpret the shift from a long period of non-engagement with the question of legal recognition to a recent interest in legal litigation among US (and international) poly activists as a response towards advancements made by the campaign for same-sex marriage rights. The prominence of polyamory and polygamy in scaremongering slippery slope arguments against same-sex marriage provided a powerful barrier for the articulation of concrete demands for legal recognition within poly activism. This section also analyses in closer detail the legal reasoning behind the strategic deployment of sexual orientation models within a marriage framework. In the third part, I present critical thoughts on why the adaption of sexual orientation discourse may have negative impacts on the development of poly activism. My concerns are with questions of the constitution of poly subjects as political actors, the scope for mobilisation and the risks of reductionist and exclusivist strategies. The conclusion sums up the main arguments.
Klesse concludes
Over recent years, a discourse which posits polyamory as a sexual orientation has gained momentum. ... Sexual orientation arguments have provided an important tool in litigation around same-sex marriage rights. Scholars and activists have recently started to explore whether similar strategies could be useful for poly activists who wish to advocate for the legal recognition of their relationships and families. I have argued that such a strategy may have detrimental effects by reducing the challenge and critical potential of polyamory, channelling activism towards narrow goals defined by a self-limiting equality agenda and undercutting the inclination of the movement to enter larger coalitions around wider social-justice-based struggles.
Multi-partner relationships are excluded from recognition and any protections by the law and certain manifestations of plural marriage face criminalization and prosecution. The damaging impacts of the ‘monogamy of the law’ have been powerfully demonstrated in many studies (Emens 2004, Polikoff 2008, Brake 2013). The history of the campaign for same-sex marriage rights in the United States shows that a piecemeal strategy of litigation can lead to long-term change in expanding the rights allocated to certain institutions and legal statuses (Pierceson 2013). Yet these pragmatic successes cannot mask the fact that the marriage equality campaigns of the LGBT movement has drawn upon an ‘antipluralist and exclusionary conception of marriage’ (Calhoun 2005, p. 1036). Marriage is more accessible and matters more to certain parts of the population (Farrow 2010, West 2007). Moreover, the privileged focus on the rights to marriage have had the effect of limiting the imagination of the advocates for LGBT families to explain the causes of discrimination in a mono-causal fashion. The goal of marriage equality does not necessarily enhance a critical and creative paradigm. Polikoff (2009) suggests that ‘a law reform agenda that values all families and relationships and by extension those of heterosexual as well, does not start with the package of rights that marriage gives different-sex couples and work down from there, strategizing how many of those rights politicians are willing to grant same-sex couples who sign up with the state in a status called civil union or domestic partnership. Instead, such an agenda starts by identifying the needs of all LGBT people and works up from there to graft legislative proposals to meet those needs’ (Polikoff 2009, p. 209).
Poly activism runs the risk of falling into the same trap if it deploys a simple analogy between same-sex marriage and plural marriage. Fischel (2016) proposes a wider social-justice agenda around the value of relational autonomy, rather than a fixation on a ‘fundamental right to marry’. A valuing-all families approach is more inclined to look for legal solutions beyond a singular route to recognition. ‘All families, relationships, and households struggling for stability and economic security will be helped by separating basic forms of legal and economic recognition from the requirement of marital and conjugal relationship’, posits the collective statement ‘Beyond Same-Sex Marriage: A New Strategic Vision for all our Families and; Relationships’ (2006). This argument shares common ground with the concerns of feminist scholars, who want the law to focus on supporting care networks, rather than romantic, conjugal and/or sexual relationships (Fineman 1995, West 2007). 
Sexual orientation models of polyamory may work well to construct marriage equality arguments, but they are at odds with the inherent plurality of polyamory as a social and intimate practice. They may obstruct rather than sustain the creative thinking needed to guarantee access to rights and resources through a more comprehensive law reform agenda. For all these reasons, I agree with Barker and Langdridge (2010, p. 16) who argue that ‘[p]otentially there is more to be gained (politically and theoretically) from a non-monogamy discourse which positions these divisions and boundaries as relevant to all, across the spectrum of relationships (universalizing), rather than one which sees them as an issue of active importance for only a small, relatively fixed, self-defining, non-monogamous (minoritizing) minority’. Rather than framing polyamory as a distinctive identity or orientation, it is helpful to see polyamory as a multi-positional but integrated field of intimate and sexual practices whose participants share at least potentially some concerns with others, both within the non-monogamous spectrum and beyond.
'What’s queer about non-monogamy now?' by Eleanor Wilkinson in Meg Barker and Darren Langrdridge (eds), Understanding Non-Monogamies (Routledge, 2010) states
This chapter is an attempt to move beyond popular narratives that position non-monogamy as nothing more than a personal sexual preference. Instead I want to place non-monogamy into a broader queer political agenda; and aim to see the rejection of monogamy as a political act. I have chosen to focus specifically upon polyamory and potential future moves towards political mobilization. Currently polyamory is a sexual story about interpersonal relations, but what happens when we begin to scale our sexual stories ‘upwards’ to ‘wider’ societal concerns? Although polyamory may be a burgeoning ‘sexual story’ (see Ritchie, this volume), current ways of talking about sex and love are too narrow and individualized. This limits the potential impacts of non- monogamy as a critique of broader structural relations. Putting the politics back in to polyamory opens up the possibility for different stories to be told and alternative affinities to be made. 
However, at the same time we must address the false assumption that those who practice non-monogamy will have an inherent commitment to wider political change (see Aviram, this volume). I therefore suggest that there is a need to differentiate between a rejection of monogamy and a rejection of ‘mononormativity’ (Pieper and Bauer, 2006)1. By making this distinction we can begin to map out a vision of what a politics of anti-mononormativity could become (whilst separating it from the rather more ‘normative’ lifestyles of those who may simply be nonmonogamous). So in attempting to ask ‘what’s queer about non-monogamy now?’ we must first begin with a thorough critique of mononormativity itself. In our attempts to ‘understand non-monogamy’ there is a danger that we can still inadvertently position it as ‘other’; as something that needs explaining (and perhaps excusing). Without a critique of mononormativity we risk leaving monogamy as a practice that requires no explanation or critique. I aim to challenge the myth that monogamy serves the ‘common good’, and to demonstrate that compulsory monogamy disadvantages not just the polyamorist, but a whole host of people whose lives and loves fall outside of this conventional dyadic ideal. 
This chapter will be split broadly into three strands. Firstly I am going to outline how certain forms of polyamory may support rather than challenge existing sexual norms. Yet although popular narratives of polyamory are often criticized for their apolitical stance, I feel that polyamory could still be a highly useful term for queer politics. I shall therefore move on to ask what could be considered ‘queer’ about non- monogamy. In this section I shall give a brief summary of the position of non- monogamy within queer politics, and highlight some of the problems with a simplistic division between the normative and the anti-normative. Here I aim to outline some of the problems of narrowing our political agendas down to solely a matter of radical sexual practice. Having set out my theoretical background I shall then put forward some suggestions about what a politics of anti-mononormativity could become. Ultimately I argue that our discussions about ‘mononormativity’ should not just be limited to a matter of sexual politics; in order to make a queer political intervention, polyamorous politics must make a move from identity to affinity.