Why the debate over same-sex marriage misses the point
This article is part of a package on rethinking marriage. For more read …or is it? —testimonials and portraits from same-sex couples denied the benefits of marriage.
A consumer of current news might imagine that access to same-sex marriage is the most contested issue in contemporary family policy, and that marriage is the only cure for the disadvantages lesbian and gay families face. Both of these observations would be wrong. The most contested issue in contemporary family policy is whether married-couple families should have “special rights” not available to other family forms. Excluded families include unmarried couples of any sexual orientation, single-parent households, extended-family units, and any other constellation of individuals who form relationships of emotional and economic interdependence that do not conform to the one-size-fits-all marriage model. No other Western country, including those that allow same-sex couples to marry, creates the rigid dividing line between the law for the married and the law for the unmarried that exists in the United States.
I propose family law reform that would recognize all families’ worth. Marriage as a family form is not more important or more valuable than other forms of family, so the law should not give it more value. Couples should have the choice to marry based on the spiritual, cultural, or religious meaning of marriage in their lives; they should never have to marry to reap specific and unique legal benefits. I support the right to marry for same-sex couples as a matter of civil rights law. But I oppose discrimination against couples who do not marry, and I advocate solutions to the needs all families have for economic well-being, legal recognition, emotional peace of mind, and community respect.
Bonnie Cord graduated from law school and began working at a government agency. She bought a home with her male partner in the foothills of the Blue Ridge Mountains in Virginia. When she applied to take the Virginia bar exam—a test necessary to obtain the right to practice law in the state—a judge ruled that her unmarried cohabitation made her morally unfit to do so.
Catrina Graves was driving her car behind a motorcycle driven by Brett Ennis, the man with whom she had been living for seven years. A car failed to stop at a stop sign and hit Brett’s motorcycle; Brett was thrown onto the pavement. Catrina saw the accident, stopped her car, and ran to Brett, who had suffered trauma to his head and was bleeding from the mouth. He died the next day. When Catrina sued the driver for negligent infliction of emotional distress, the court dismissed her lawsuit because she was not related to Brett by blood or marriage.
Olivia Shelltrack and Fondray Loving had lived together for 13 years when they bought a five-bedroom home in Black Jack, Missouri. They moved in with their two children and a third child from Olivia’s previous relationship. The city denied them an occupancy permit because its zoning laws prohibit more than three people unrelated by blood, marriage, or adoption from living together.
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.
This necessity, coupled with the disruption of expectations that ending the state’s involvement in marriage would produce, suggests another approach.
I call this approach valuing all families. The most important element in implementing this approach is identifying the purpose of a law that now grants marriage unique legal consequences. By understanding a law’s purpose, we can identify the relationships that would further that purpose without creating a special status for married couples.
Sweeping legal changes in the late 1960s and early 1970s altered the significance of marriage and laid the groundwork for a more pluralistic vision. Those changes grew out of cultural and political shifts, including feminism and other social-change movements; greater access to birth control and acceptance of sex outside marriage; and increased dissatisfaction with marriage. The legal changes included decreased penalties on nonmarital sex, especially an end to discrimination against children born to unmarried mothers; equality between the sexes; and no-fault divorce.
Early advocates of gay and lesbian rights forged alliances with others who challenged the primacy of marriage: divorced and never-married mothers, including those receiving welfare benefits; unmarried heterosexuals, both those consciously rejecting the baggage associated with marriage and those who simply did not marry; and nonnuclear units, such as communal living groups and extended families.
The gay rights movement was part of broader social movements challenging the political, economic, and social status quo and seeking to transform society into one in which sex, race, class, sexual orientation, and marital status no longer determined one’s place in the nation’s hierarchy. Marriage was losing its ironclad grip on the organization of family life, and lesbians and gay men benefited overwhelmingly from the prospect of a more pluralistic vision of relationships.
There were setbacks. A backlash resulted in restrictions on women’s reproductive freedom, gay rights laws were repealed, and welfare mothers were sold out. Conservatives employed the rhetoric of “traditional family values” to fight any proposal advancing recognition and acceptance of lesbian, gay, bisexual, and transgender (LGBT) people, and used antigay propaganda to raise money and garner votes for a wide-ranging conservative agenda.
Since the mid-1990s, two movements born of this history have placed marriage in the public policy spotlight. The “marriage movement”—with both religious and secular components—opposes not only recognition of LGBT families but also easily obtained divorce, childbearing and sex outside marriage, and sex education that teaches anything other than abstinence. It advocates government funding of “marriage promotion” efforts. Its most prominent religion-based groups are Focus on the Family and the Family Research Council. They speak of family and marriage as God-ordained.
David Blankenhorn of the Institute for American Values and Maggie Gallagher of the Institute for Marriage and Public Policy are leading spokespeople for the secular claim that supporting any family form other than heterosexual marriage endangers the social fabric. By blaming poverty, crime, drug abuse, and education failure on family diversity, they point the finger at unmarried mothers and absolve government of the responsibility for wage stagnation, income inequality, poor schools, sex and race discrimination, and inadequate child care and health care. Legal groups such as the Alliance Defense Fund and Liberty Counsel represent these positions in litigation. The mission of Liberty Counsel is “restoring the culture one case at a time by advancing religious freedom, the sanctity of human life, and the traditional family.”
The “marriage equality” movement advocates for gay and lesbian couples to be able to marry. Attorney Evan Wolfson heads a national organization, Freedom to Marry, that has the support of numerous partner organizations, gay and nongay, at the national, state, and local levels. Two national groups, the Human Rights Campaign and the National Gay and Lesbian Task Force, work to advance many LGBT rights issues and devote some of their resources to marriage-related organizing and advocacy. Four legal groups that challenge discrimination against LGBT people in all areas, including employment, schools, immigration, the military, and family law, have had primary responsibility for the litigation contesting restrictions on access to marriage: Lambda Legal (formerly known as Lambda Legal Defense and Education Fund); Gay & Lesbian Advocates & Defenders, the Boston-based group that won the right to marriage equality in Massachusetts; the American Civil Liberties Union Lesbian Gay Bisexual Transgender Project; and the National Center for Lesbian Rights.
Both these movements focus on marriage. Neither starts by identifying what all families need and then seeking just laws and policies to meet those needs. The marriage movement’s leading spokespeople argue that the intrinsic purpose of marriage is uniting a man and a woman to raise their biological children. They oppose marriage for same-sex couples and want marriage to have a special legal status.
The marriage-equality movement wants the benefits of marriage granted to a larger group: same-sex partners. With few exceptions, advocates for gay and lesbian access to marriage do not say that “special rights” should be reserved for those who marry. But the marriage-equality movement is a movement for gay civil rights, not for valuing all families. As a civil rights movement, it seeks access to marriage as it now exists.
The movement’s most consistent claim is that exclusion from marriage harms same-sex couples in tangible ways. But people in any relationship other than marriage suffer, sometimes to a level of economic or emotional devastation. The law is not uniquely unfair for gay and lesbian couples. Access to marriage will provide some gay men and lesbians with the economic support and peace of mind that come from knowing that all your family members have adequate health insurance, that a loved one can make medical decisions for you if you are ill, that your economic interdependence will be recognized at retirement or death, and that your children can be proud of the family they have. But other LGBT people, as well as those whose form of family, for whatever reason, is not marriage, will still be without those supports that every family deserves.
Laws that distinguish between married couples and everyone else need to be reexamined. They stem from the days when a husband was the head of his household with a dependent wife at home, when a child born to an unmarried woman was a social outcast, and when virtually every marriage was for life regardless of the relationship’s quality. It was a very different time.
When the Supreme Court declared the laws differentiating between men/husbands and women/wives unconstitutional in the 1970s, the laws became gender-neutral. This created a new problem. It left distinctions between married couples and everyone else without assessing the justness of that approach. It’s time to make that assessment. Today more people live alone, more people live with unmarried partners, and more parents have minor children who live neither with them nor with their current spouse. The laws that affect families need to be evaluated in light of contemporary realities. A valuing-all-families approach does this by demanding a good fit between a law’s purpose and the relationships that are subject to its reach.
In every area of law that matters to same-sex couples, such as health care decision making, government and employee benefits, and the right to raise children, laws already exist in some places that could form the basis for just family policies: for those who can’t marry or enter civil unions or register their domestic partnerships; those who don’t want to or who simply don’t; and those whose most important relationship is not with a sexual partner. These laws will help many families, not just LGBT ones, and not just couples.
Successful reform that values all families may not come in the name of gay rights. It may come under the banner of, for example, patients’ autonomy, family pluralism, or the needs of children. Some lawmakers will support important reforms precisely because they help many people in many families and do not appear to be “gay rights” issues. In recent years, that motivation has produced a Salt Lake City policy that extends health insurance to any one adult member of an employee’s household and that person’s children, a law in Virginia requiring hospitals to allow patients to select their own visitors, and a change in federal pension law that allows any beneficiary to inherit retirement assets without paying a tax penalty. In these sorts of cases, gay rights leaders rightly trumpet that they will help LGBT families.
A strategy in the name of gay rights toward recognition of same-sex partnerships, where it is successful, is a civil rights triumph. It may, however, have unfortunate consequences for family policy. Same-sex couples will have the right to a formal legal status for their relationships; those who exercise that right will have the array of benefits that married spouses now receive. This will disregard the needs of LGBT couples who don’t marry or register, LGBT singles and households not organized around sexual intimacy, LGBT parents without partners, and the families and relationships of vast numbers of heterosexuals.
Where a gay rights strategy loses and does not result in marriage, civil unions, or partnership registration, the “special rights” given marriage will continue to harm same-sex couples. Where a losing gay rights strategy results in a constitutional amendment barring recognition of unmarried same- and different-sex couples, as more than a dozen states have, those couples may be worse off than they are now. That’s what happened in Michigan, where public employees lost domestic partner benefits.
A valuing-all-families strategy achieves good results, for good reasons, and makes marriage matter less. That was the direction U.S. law and policy was headed before the right-wing backlash against feminism, LGBT rights, and other progressive social change. Today, that backlash includes the religious and secular marriage movement. Its emphasis on marriage should not lead gay rights activists away from advocacy that will meet the needs of diverse families and relationships in a pluralistic society.
Nancy D. Polikoff is a professor of law at American University Washington College of Law. Her website is www.beyondstraightandgaymarriage.com. Excerpted from Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law. Copyright © 2008 by Nancy D. Polikoff. Reprinted by permission of Beacon Press; www.beacon.org.