It’s Not a Gay Thing...

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These are heterosexual couples and they could marry. But they shouldn’t have to. Bonnie’s choice to live with an unmarried partner bore no relationship to her ability to practice law. Catrina’s anguish would have been no different had Brett been her spouse. The proper zoning concerns of Black Jack, Missouri, do not turn on whether Olivia and Fondray marry.

Extending legal rights and obligations to unmarried couples, as many Western countries do, is a start, but it is not enough. “Couples,” meaning two people with a commitment grounded on a sexual affiliation, should not be the only unit that counts as family.

Consider these examples:

As a foster child, Jason was placed with married parents, Daniel and Mary Lou, who divorced two years later. Jason then lived with Mary Lou and visited Daniel, who also paid child support. When Mary Lou and Daniel petitioned to adopt Jason, the court ruled that unmarried adults could not adopt a child together.

Two sisters in England, Joyce, 88, and Sybil, 80, have lived together all their lives. They grew up on a 30-acre farm and worked on the land. They moved away for about 15 years but returned in 1965, built a home on the land, and leased the farm. They live off the rental income. Each has a will naming the other as beneficiary. When the first sister dies, the 40 percent inheritance tax will make it necessary for the survivor to sell the land and move. The survivor of a heterosexual married couple or a registered same-sex civil partnership would not have to pay this tax.

Maria Sierotowicz, 59, had been living in the same one-bedroom subsidized housing unit in Brooklyn since 1984. Her mother, who lived with her, passed away in 1990. Ten years later, her 81-year-old father returned to the United States from Poland and moved in with her so that she could care for him. Maria followed procedures and requested that he receive permission to join her Section 8 household. Her request was denied because he wasn’t her spouse and his presence would make her unit “overcrowded.” Maria received a notice terminating her Section 8 subsidy.

Marriage cannot be the solution to these problems. Jason’s parents tried marriage; it didn’t work for them. They need to be able to adopt Jason as two unmarried parents (if a judge finds that such an adoption is in Jason’s best interests). Sybil and Joyce are a family, but not a family based on marriage or even on a marriage-like relationship. They are a long-term, interdependent unit, and they need—perhaps more than many spouses do—the financial advantages currently extended only to spouses. If Maria had married, her husband automatically would have received permission to live with her. Instead she wants to care for someone who is unable to care for himself. She needs occupancy rules that do not stand in her way.

It is possible to envision family law and policy without marriage being the rigid dividing line between who is in and who is out. Keeping the state out of marriage entirely, making marriage only a religious, cultural, and spiritual matter, would be one way to accomplish this. But the law would still have to determine how to allocate rights and responsibilities in families and when relationships among people would create entitlements or obligations.

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