You have a right to be poly. The official word of the courts, though, is “ugh, whatever.”
On the bright side, there’s no risk of getting prosecuted. As long as no more than two people try to get married, what you do is your own business. It’s privacy, the same logic that struck down laws against same-sex relationships.
The drawback is that the government’s inability to interfere isn’t quite the same thing as cheering for alternative lifestyles. The only modern case on the subject was brought by the stars of the reality TV show Sister Wives, and a religious freedom claim about polygamy as practiced by a fundamentalist Mormon splinter sect isn’t very representative of modern polyamory.
Luckily, there’s a simple way to get polyamorous relationships enshrined in constitutional law.
A few laws still directly discriminate. Most obviously, some city and county zoning laws say that no more than five unrelated individuals may live together in certain places. Or three, or two. These are common enough that for most places in the United States, some city nearby probably has one.
Why does this matter? Occupancy limits aren’t very high-stakes discrimination. They’re definitely not as bad as declaring a relationship illegal. And even if a group of partners did want to live together somewhere it wouldn’t be allowed, enforcement is spotty enough that they’d have a good chance at being ignored. But it is discriminatory. And that means it’s a chance to make a judge say that polyamorous relationships are protected, even against small-scale discrimination like this.
There’s a case to make that polyamory should be explicitly protected, just like sexual orientation. But that would be asking a court to invent new law. It is far easier to use an obscure but already existing branch of the First Amendment, which protects the fundamental right to choose who you live with and what your family structure is.
Two types of association count as a fundamental right: expressive association, where you’re forming a group with a message, and intimate association. Intimate association includes marriage, child-raising, and living with relatives, but courts have said these are examples, not a full list. A group of poly partners would have a strong case that they should be included. There aren’t many associations that are more intimate than romantic ones.
“Intimate,” as it’s defined here, means a small, selective group, that exists for personal reasons. It’s the type of personal relationship that everyone has with at most a few other people and that helps define personal identity. This would unavoidably include polyamory. Even the largest polycule is small by these standards; when courts have said that a group is too large they’ve meant the Rotary Club International. And romantic relationships are always selective and personal. A stable group of long-term partners would have the strongest possible case that the First Amendment protects their relationship.
Why does this matter for people who don’t live with their partners? Or who see poly as being like monogamy but open, instead of being about multiple specific relationships? There’s no shortage of ways to be poly, and not everyone has any reason to care about random occupancy laws. But the goal isn’t just “people can live with their partners.” It’s “people can live with their partners because this is an important type of relationship that deserves protecting.”
So suppose a handful of partners, or partners and metamours, wanted to move in together. They ask the city for permission, and the city refuses. If they sue, whether they win would depend on whether their intimate association rights were violated. The court wouldn’t be able to find some other way to answer the question like in the Sister Wives case, where since it’s half about religious freedom any plausible argument in the other half gets treated like a real right. It would have to go further and actually decide whether polyamorous relationships are a protected form of intimate association.
The end result would be to make the law more inclusive. There would be a precedent that polyamorous relationships are a form of intimate association that some people prefer, and that the law cannot discriminate against poly relationships without a good reason. It would change the law from grudging acknowledgement that there are rights to affirmatively describing why this type of relationship is valuable and deserves protection. It would strike down the odd few laws that do discriminate. And it would give polyamorous relationships some better representation than a white fundamentalist polygamist.
I think this would be an improvement. Before Lawrence v. Texas said that gay relationships are legal because of privacy rights, advocates were talking about making progress through freedom of intimate association. The fact that there are still laws on the books defining what counts as a family means there is an opportunity to get legal recognition as just another type of relationship.
If this sounds like a step up, all it needs is a plaintiff. A group of partners and metamours who want to form a household together, or who already do and wouldn’t mind looking into moving. The bigger the group, the better. Not everywhere has these laws, and the more unrelated individuals there are the more likely it is to be illegal somewhere nearby. The stakes are the first solid positive precedent about polyamory anywhere in constitutional law.
Nathaniel Maranwe is a lawyer in the Washington, DC area. If you are interested in trying to make progress this way, want to suggest another way to improve the law, or want to talk for any other reason, you can reach him at firstname.lastname@example.org.
Consent is an agreement between two people about how to move forward in a sexual relationship. While it’s easy to assume that obtaining consent is easy, American society has never created a space for people to learn how to obtain consent. What appears to be a simple issue of “yes” and “no” to sex often turns into “he said, she said” when someone makes an accusation of sexual assault.
So how do we improve our knowledge of how to handle consent? The sex positive community has not been a good example. In January 2018, Reid Mihalko, a well-known sex educator and cofounder of Cuddle Parties, was accused of of sexual harassment by a colleague. Though he later apologized and entered into a restorative justice process with other colleagues, his initial decision to not take responsibility shows a huge gap between his preaching about obtaining consent versus his actions.
Milhalko created an model for consent called the “safer sex elevator speech,” a way to establish boundaries and agreements before sexual activity. If a person who taught others how to obtain consent made a potential partner feel pressured, how can a regular person know what to do when consent gets messy?
I used to promote the safer sex elevator speech to people that want to know how to communicate about sex before the act. Once I learned about Mihalko’s behavior and his response, I started working on my own model. Who am I? I’m the website editor of Black & Poly, a community for black people transitioning to polyamory. I have been an assistant organizer for my local polyamory group and I am part of the sex-positive New Culture movement. I’ve taught others about consent and I am a survivor of sexual abuse. I identify as a womanist and I believe everyone wants to get this right.
This consent model expands the elevator speech beyond the basics of who, what, and how. It starts with the recognition of agency and power balances and ends with specific communication about sexual acts. This model has the form of a triangle in equal relationship to each other. If one part is missing or abbreviated, it will affect the entire experience of giving and obtaining consent. Here are the three legs: agency, power, and communication. I’ll break down each leg in detail.
The first leg is agency, which is the recognition that we all have the ability to make choices for ourselves. We make those choices based on available information and our own judgment. When we’re in a relationship, disclosing relevant information is the way we recognize our partner’s agency.
For instance, a person in the dating scene may tell a potential partner that they are seeing others. For those currently in a relationship, it may mean telling a partner that they have acquired an STI. This information usually affects the partner’s future actions, which is why it’s difficult and sometimes embarrassing to talk about. When we withhold information, we are taking away some of our partner’s agency. When a partner has the right information, they can respond in a way that will protect their own safety and peace of mind.
Another part of agency is cognition, or each person’s ability to understand the situation. Children, teenagers, and even young adults do not have the brain development of mature adults; it’s why we restrict drugs, alcohol, and driving by age. In the same way, neurodiverse people often lack the social awareness that will give them the information needed to give or obtain consent. For all people, impairment due to drugs and alcohol means people may make different decisions than if they were sober.
When determining if your partner has agency, compare their individual development against what is expected of people the same age and disability status. If they are under the influence of drugs or alcohol, are they cognizant of the decision they are making and its possible effects? Recognizing our partner’s agency is a critical part of obtaining consent. We must also acknowledge that even when consent is asked for and given, their actions could cross legal and/or moral boundaries.
The second leg of the consent triangle is the awareness of power. It’s no accident that the majority of celebrities called out for sexual assault and harassment in the #MeToo have been powerful white men. Men born in the US have been brought up in a culture of toxic masculinity that values aggressiveness, manipulation, and dishonesty in order to “get the girl.” When a potential partner refuses to consent, a man’s response of disappointment and even anger is seen as socially appropriate.
Men are not always the bad guys, though. Any relationship between two people is subject to a power imbalance when someone has more seniority, wealth, status, or social support than their partner. Women who pressure men into sex by using their “feminine wiles” are just as guilty of manipulation. The power dynamics of each relationship is not fixed, and it’s always subjective. If someone believes they have less power, that will impact their ability to give consent.
In order to move forward with consent, people should acknowledge the power they hold in the situation. Have they considered the reasons their partner might say yes besides an actual desire to engage? Are they using their position or cultural privilege to get the sex they want? Can they give their partner the space to say no without fearing the consequences?
The fear of rejection is a powerful motivator during consent conversations. Saying or hearing “no” can be painful no matter how justified they are. In fact, many people go through with sex they are not sure about because the idea of hurting their partner seems to be worse than grinning and bearing it. To counter this, sex educators have asked people to ask for enthusiastic consent: it’s either a “Hell, yes!” or it’s a “no.”
Consent is almost meaningless when one partner has created a power imbalance through coercion and violence. People evaluating consent from the outside cannot use someone’s failure to stand up to or leave their abuser as a sign of consent. In the same way, it can be difficult to tell if a situation is sexual harassment or not. We can only start by believing the accuser and looking for patterns in each person’s behavior as it relates to the power balance.
The final leg of consent is the actual communication. Even in romantic comedies where the couple is falling over each other to get in a bed, consent has to be asked for and given. In an ideal world, progressively more intimate activities are verbally consented to by each partner. In the real world, it looks more like shy touches, smiles, and other nonverbal communication. The problem is that some people will look back on those activities and know that at some point they were unwilling to continue.
The moment bad sex becomes something worse is when this unwillingness is glossed over, when one partner notices that something is wrong but continues anyway. We have all experienced the feeling of powerlessness when we give up our agency to another. Our consent is half-hearted, and the guilt can be overwhelming. If you’ve ever had that experience in a non-sexual situation, then try to act with compassion when you see your partner hesitating to give consent.
So what does a conversation about sex look like? It starts with the truth. “I want to be intimate with you.” Even if the phrase sounds awkward and perhaps unauthentic, I encourage you to go into even more detail. The initial yes should be followed up with a checklist of sorts to cover the entire spectrum of sexual activity. Consider the following areas:
Touching genitalia and erogenous zones
Penetration (genitals, fingers, toys)
BDSM activities such as spanking and fetishes
In the spirit of recognizing agency, both partners should discuss any potential barriers to consensual sex. This includes:
STIs and date of last testing
Use of barriers (such as condoms or dental dams), what kind and where
Current relationships and agreements
Past sexual history
Use of birth control or medical sterilization
Medical conditions and other physical limitations
Psychological limitations, history of abuse, and triggers
Attitude towards sex and how it will affect the relationship moving forward
Practice communicating consent before you and your partner get to the bedroom. Over time, these conversations will become commonplace and easier. It’s understandable that not everyone can talk about these things without feeling embarrassed or nervous, but sex is not something to be done in the proverbial dark. The more openness you bring to the conversation, the less shame you will feel about doing one of the most human acts.
At the end of the day, consent is just one part of navigating relationships. Due to the legal and social change in the world, it’s more important than ever to find a way to give and obtain consent without shame and guilt. Recognizing each other’s agency, addressing power imbalances, and communicating consent is a great way to create space for the pleasurable experience that sex should be.
Now that we have a model of consent, let’s apply it to different situations.
Situation 1: A heterosexual couple has gone out on their first date and are now at the man’s house for a nightcap. The man, recognizing his power in this situation (it’s his house and his alcohol) tries to make the woman as comfortable as possible. He may offer her a drink and sit beside her, almost touching her in a way that is intimate but not forceful. Either may initiate sex by engaging in touching and other nonverbal signs.
In order to bring the triangle of consent into balance, they can do things differently. Either partner could demonstrate agency by speaking the truth about the situation: “I’m at your house and excited about connecting more with you.” “I know I invited you over, but I understand if you want to leave without us having sex.” They can also turn touching into communication by saying, “Can I give you a hug or kiss?” Creating an opening for communication gives both partners the space and time to get in touch with their desires and act from a place of enthusiastic consent.
Situation 2: Gay acquaintances have been drinking at a bar, and one partner is interested in making out. Both partners have been using their agency by flirting and talking during the night. They have the social skills to be able to interpret when their attention is no longer reciprocated. Either one can gain consent by verbally asking for a kiss.
No matter how encouraging a partner has been, direct communication establishes a starting point for consent that they can both point to later. It’s true that alcohol can interfere with judgment, and that people can still regret activities they consent to. The more time they spend talking about what they both want, they more likely they will look back on the situation with confidence.
Situation 3: A woman at a higher level in a company is flirting with a colleague. The woman can acknowledge her position of power by saying, “I know I’m in upper management at work, but I want us to be equals outside.” She can clarify what she wants by saying, “I’m flirting with you because I’m interested in a sexual relationship.” It is vital that she gives her partner space to say yes or no and to follow up with details. Instead of depending on innuendo and creating a potentially dangerous “he said, she said” situation, both people can consent to the interaction in a way that feels good. (It’s still possible that their relationship could violate company guidelines.)
The world of dating is often murky, and misunderstandings can be played up as humorous or treacherous. By incorporating the triangle of consent into your interactions, you can create a container of safety and awareness around sexual activity.
Believe it or not, a children’s show has created a perfect scenario for talking about consent. In the show Steven Universe, Steven is a half-alien who has a human friend named Connie. In this episode, they realize that they can fuse together like the aliens can. Fusion is an analog of sex for the aliens, and the episode is a great representation about how consent works.
In this episode, Steven and Connie are enjoying themselves at the beach. They start dancing, which is how the aliens initiate a fusion. Steven recognizes his power and covers his eyes before asking Connie to dance. They both allows themselves to be vulnerable with awkward dance moves and giggles. When they fuse, they are able to enjoy the pleasure of being in sync with each other while recognizing that sometimes they are uncomfortable. After interacting with other characters in the show, they stop to check in. “Are you ok?” This simple question opens up space for both people to communicate their willingness to continue.
Later, at a dance party, Steven and Connie’s togetherness becomes downright uncomfortable. They stop dancing and wonder why it’s not fun. They are both willing to say that something is wrong, even if they can’t explain why. Whether we express it or not, we know what a no feels like. Many of us have also experienced the negative consequences of saying no. In the episode, the response to no included aggressive shaming and attempts to convince them that their no is not a real no. We can create a better consent culture when we recognize a no, stop, and enjoy our time with a partner at a level where we are both comfortable.
H/T to Gregory Avery-Weir for their breakdown of Alone Together.
Five years ago, Ron Young started Black & Poly with the vision of creating a space for black families to love and learn together. Now, Black & Poly is celebrating it's fifth anniversary with a weekend-long party in Los Angeles! Here are just a few of the highlights for this exciting event, September 28-30.
"The Sharing Game" was designed by Dr. Arthur Aron as a way for complete strangers to develop close bonds or even romantic connections in just under an hour. This "game" explores vulnerability and transparency in a way that results in accelerated emotional intimacy, and interpersonal closeness with others through introspective sharing, and deep communication.
Evita Sawyers interviewed Ruby Bouie Johnson, therapist and organizer of Poly Dallas Millennium. Learn more about her private practice here.
You ever talk to a person and just instantly feel a kinship and ease with them? A comfort and familiarity. Warmth. That was exactly what my conversation with Ruby Bouie Johnson felt like. I had never met Ruby in person or online, and I was asked to get the word out about this dynamic polyamorous woman of color and to plug her upcoming event in July. Poly Dallas Millennium is her annual symposium about ethical and consensual non-monogamy with a special emphasis on the experiences of persons of color. I called Ruby on an early Saturday afternoon, and, in no time, we were chatting like old friends.
ES: “Hello! Such a pleasure to be speaking with you. Let’s dive in! How long have you been polyamorous?”
RBJ: “I discovered polyamory in 2010.”
ES: “Nice! And how many current partners do you have?”
RBJ: *Laughs* “Partner is such a loaded word! Let’s just say that I have many people that I love a lot that have love for me, but I am currently in one romantic relationship.”
ES: *Laughs* “I feel that! Makes sense. Tell me how you discovered polyamory.”
RBJ: “I met a gentleman while in recovery. He was recently divorced and didn’t want to be monogamous anymore; he was over it. He introduced the concept to me. I didn’t understand it. I had a territorial and possessive idea about love, that there wasn’t enough, that love was scarce. I struggled. We broke up but I fell in love with the community. Like minded people together, learning from one another and supporting each other. My first love was the community.”
ES: “Man, do I understand that. Discovering the swinger community had that same affect for me. I felt like I was finally around people who ‘get’ me. People I could really be myself with.”
RBJ: “And through polyamory, I discovered the kink community. Kink was always something that I held but hadn’t fully explored. There’s a large intersection of the polyamorous and kink communities. I burst open. I was like a kid in a candy store and no one judged me! I felt freedom from the abuse I had experienced in my life; I learned about consent. Polyamory was the catalyst for a life altering change for me. It aided in my recovery and in the evolution of myself. It was the liberation and the breaking of life long chains. I never thought I’d get remarried, and now I’ve been with my current spouse for five years.”
ES: “I felt the Spirit move on that one! What is polyamory about to you?”
RBJ: “Honestly, polyamory is as much about loving myself as it is about loving others. It’s about not judging ourselves for our wants and desires and not judging others for theirs. It’s a revolutionary act of love for me.”
ES: “That resonated with me. The biggest benefit of polyamory for me is the self-discovery. I have learned so much about myself and how to appreciate and accept and love ME. I feel like once I began to learn how to do that, it made it easier for me to do that for others.”
RBJ: “Exactly. You can’t do something for someone else that you can’t do for yourself.”
ES: “What would you consider is YOUR polyamorous practice?”
RBJ: “My approach to polyamory is an egalitarian approach. In my experience, hierarchy in my relationships doesn’t work, it doesn’t feel good. I don’t have a “primary” and “secondary” outlook for my relationships. There’s no up or down. I feel like an egalitarian approach is kinder. No one is made to feel like a second class citizen or disposable. I had to learn how jealousy works in order to learn how to be accepting and inviting of the people I am in relationship with.”
ES: “To me, egalitarian relationships are empowered relationships. People do better when they feel they have power and agency in their relationships. Tell me about your event in the summer! What is the Poly Dallas Millennium Symposium?”
RBJ: “The Poly Dallas Millennium Symposium started in 2015 as a workshop to educate clinicians about polyamory, kink, and BDSM. By 2016 it was over two days long. 2017, three days. Poly Dallas first provided a platform for a lot of folks of color to have their voices be heard. That wasn’t commonly heard of at poly conferences before: a large number of speakers of color.”
ES: “Even now, we are just starting to really make our voices heard as polyamorous people of color.”
RBJ: “This is the only event of this kind that caters specifically to persons of color and their experiences. It’s a labor of love for me; I pour my own personal resources into it because I believe in what we’re doing.”
ES: “I have heard some incredible things about the event.”
RBJ: “We have to be intentional about creating our own spaces. We need our black communities to come out and support. This may be the last year I am able to coordinate this if we don’t get the word out and get people coming.”
ES: “That is a major struggle. I live in San Diego where large communities of black polyamorous persons are scarce. It’s hard trying to get people to come together. We complain about not having our own spaces and representation but when we do, we need to do the work to keep them going.”
RBJ: “This year we have an incredible line up of speakers, including Kevin Patterson, author of ‘Love Is Not Colorblind’ and creator of the Poly Role Models blog, and Femnista Jones, blogger, activist, and author of ‘The Secret of Sugar Water’.”
ES: “I saw that you wrote the foreword for Kevin’s book! I totally fan girled out for you when I read it! It was really good!”
RBJ: “Thank you! Most people don’t even notice that that was me!”
ES: “What are some of the topics that will be discussed?”
RBJ: “The tagline for Poly Dallas Millennium is Developing Critical Consciousness, and this year’s theme is Rewriting the Rules. We’ll be talking about a wide range of topics from raising children in polyamorous families, dealing with grief and loss in polyamorous relationship, how to set proper boundaries for yourself, the intersection of race in polyamory, rewiring your personal triggers, and a variety of relevant discussions will be taking place.”
ES: “It sounds amazing; I can’t wait to go. It’ll be my first time attending anything like this! I’m excited. Before we close this out, any last words? A parting message?”
RBJ: “Yes. Come and support our event. Lend your presence and voice and experience. Come and learn and find community amongst other polyamorous people of color just like you. Black people are the game changers. We are an essential group, and we don’t realize our power, and once we realize our power, we’ll be unstoppable.”
The 4th annual 2018 Poly Dallas Millennium Symposium will be taking place July 13-15. For more information and to register, visit their website at www.polydallasmillennium.com.
THIS…..BOOK……RIGHT…HERE!!! (inserts slow clap) I’ve been waiting to read this since hearing about it last year. I thought, Finally Yesss, someone talking about the problems of race within polyamory and other alternative communities which I do belong in.
First can we just talk about the Forward by Ruby Bouie Johnson though??!!! Sis, really came through. Yup I’m about to be real black on this review. I already admire her from just hearing her speak on previous occasions within the poly community so when I read her forward it set the tone for the whole book. It fed my soul and made this atheist want to go back to my old church and do a praise dance and run a few laps around the sanctuary. That’s just how good I felt throughout this WHOLE book. Some of her quotes that got me were:
“A book about the polyamorous experience written by a black man just happened in 2017. This is a historical moment.”
“Black people have been spectators to the white experience long enough. Kevin fills a much needed gap in the literature within the poly community.”
I made a status update just 22 pages in about how this book was making me get my whole entire life, and it was. I had to nod my head to SO much in this book. So much that most people in the alternative communities don’t know about inclusion. I’ve personally experienced in the BDSM community both online and in real life. I’ve been one of the only few black women there who just so happened to have a friend (another black women who I refer to as my “sub sister”) there to support and have fun, but of course I’ve been met with the fetishization of me and my body as a black woman. Kevin speaks about this at length in his chapter on fetishization.
I’ve dogeared several pages that I wanted to talk about that really resonated with me like always being the “ambassador” of polyamory to my non-poly or mono relatives. It’s really irritating that I’m always that one, the face of polyamory so to speak. I know a few of my friends or relatives may say yeah Jai’s into that “white people shit” which he discusses in the book as well. I nearly died laughing when he said that because I’ve heard that about almost everything I like to do, but, oh well, I won’t take up too much time on that topic.
A few things that Kevin does that I absolutely love about this book is he says in the first few chapters of the book about how much privilege he has a cisgendered heterosexual male. He recognized the privilege he had right there, and that’s very important. Sadly, most non-POC can’t recognize how their racial privilege affects people. For the most part it’s a negative effect. I seriously wish I could post every single quote and thing that hit home. I just nodded my head through so much of it, like yup he gets it. He absolutely gets it. Some of the other topics he discusses are intentional communities, othering, white feminism in polyamory, and fostering inclusion in poly to name a few.
These topics definitely need to be addressed all the time, not just in polyamory and alternative communities. I don’t know how many countless discussion, journal entries and group posts that I’ve read in online forums about racism, stereotyping and fetishization. It’s a sad, sad state of affairs, but it is pretty common and of course those people who do it don’t even realize they’re doing it, and, when confronted, they make up every excuse not “to own their shit” as stated in the book. Hey, everyone can’t and won’t grow, I learned that a long time ago.
I’m going to end this review with another quote that resonated with me. “If you aren’t being actively inclusive, you are being passively exclusionary.”
The Polyamorists Next Door: Inside Multiple Partner Relationships and Families by Elizabeth Sheff
In my ever growing thirst for knowledge on polyamory and non-monogamy, I came across this book while browsing Audible. I have a monthly membership, so I’m able to purchase an audiobook with a credit. When I first saw the title, I was like Yessss! They’re finally talking about polyamory within a family setting and how real people navigate it.
Here’s a slight blurb from the Goodreads website about the book. “Dr. Elisabeth Sheff examines polyamorous households and reveals their advantages, disadvantages, and the daily lives of those living in them. While polyamorous families are increasingly common, fairly little is known about them outside of their own social circles or of the occasional media sensationalism. This book provides information that will be useful for professionals with polyamorous clients, educators who wish to understand or teach about polyamory, and especially people who wish to better understand polyamory themselves or explain it to their potential partners, adult children, or in-laws.”
After listening to it, here are my thoughts on the book:
This book came about from 15 years of research in the poly community by the author. For those who continually say, “What about the kids?” when it comes to poly people, Elisabeth gave those real life questions important answers. I felt like her research was groundbreaking in the sense that very few books focus on poly households and the day-to-day lives of those families. I really liked that the author included LGBTQ people and their families in her research as well. One thing I was disappointed with is that there was virtually no representation of poly people of color, which I brought up to a friend who’s doing research on poly people of color. He stated, and I agree, that the poly community is divided along the color lines. Which I feel is very sad. All in all I’m happy that I read this book.
I personally don’t have any small children so this issue doesn’t affect or bother me but it’s important because of my other partners have children and this research and discussion is much needed.