After marriage equality, what's next for relationship recognition?

• Author: Culhane, John G.
• Position: Symposium on LGBT Rights

1. INTRODUCTION

   The timing for this symposium on LGBT rights could hardly be more propitious. The United States Supreme Court recently held oral arguments in marriage equality cases from four states (and by the time you read this article, the cases will have been decided). (1) At issue was whether the decision by the Sixth Circuit Court of Appeals would stand. In upholding state laws that denied same-sex couples the right to marry, that court swam against a strong tide of lower court and appellate decisions finding that gay and lesbian couples were entitled to the same marriage rights as their straight counterparts, including one decision by a South Dakota district court judge. (2) A decision by the Supreme Court was expected by June, and most observers believed that the Court would side with the majority (3) and definitively resolve this contentious national battle. Thus, the time is right to move past this issue and examine a new--but related--set of issues that the marriage equality battle has spun off.

   Even if the Court ruled as expected, the struggle for equality and dignity will continue. Some states have already begun pushing back against what they deem a seriously misguided error. A dramatic example comes from Alabama. There, in reaction to a decision by a federal district judge that held in favor of same-sex couples seeking the right to marry, the Alabama Supreme Court seized jurisdiction and forbade the issuance of marriage licenses to same-sex couples. In its decision, the Alabama Supreme Court relied on its own contrary interpretation of the United States Constitution. (4) The court expressly and inappropriately took the United States Supreme Court to task for its decision in United States v. Windsor, (5) the case it saw--probably correctly--as the linchpin for the Court's coming vindication of marriage equality.

   More serious incursions into the principle of marriage equality have emanated from state legislatures. The most dramatic example comes from Indiana where there was a law that would have given private businesses a free hand to discriminate against the LGBT population; the law came under heavy fire and was soon "fixed." (6) However, those measures pale beside the truly vitriolic bills that have been introduced in Oklahoma. One would simply enshrine a right to discriminate against any member of the LGBT community in state law--even though the state is already without protection for that community--while another, clearly unconstitutional measure would strip any public official who issues a marriage license to a same-sex couple of her salary, her benefits, and her job. (7) If the question is whether the Supreme Court's marriage equality decision is going to be more like Brown v. Board of Education (8)--widely accepted--or Roe v. Wade (9)--still contentious, more than forty years after the Court found that a woman's reproductive rights included the choice to terminate her pregnancy--the answer is: it is too early to tell.

   Instead of focusing on the fallout related to the achievement of marriage equality itself, I want to look at a far less noticed by-product of the movement: the establishment and subsequent flowering of several new forms of legally recognized relationships. These novel legal creatures take several names: domestic partnerships, civil unions, reciprocal beneficiaries, and designated beneficiaries. They were all created through compromises struck between those who opposed same-sex relationships and those who favored them. Now that marriage equality has been achieved, will some or all of these continue to exist--perhaps even flourish--or will they spiral down into one of history's many oubliettes?

   The question is urgent, and a proper understanding of these legal relationships can lead to policy that would be helpful to many different kinds of families, including those whose relationships are not yet recognized or protected by law. Once the verities and astonishing list of prerogatives of marriage are called into question by the demands of same-sex couples, the questions do not end with the creation of new statuses. A quick survey of these statuses shows how they quickly came to transcend their origin in marriage compromise and suggests a possible future in which the law continues to evolve to support the kinds of relationships that people are actually in--a category that is neither defined nor limited by marriage. In each case, I consider whether the new institution under discussion should be retained or abandoned.

2. DOMESTIC PARTNERSHIPS

   The first domestic partnership law was enacted in Berkley, California, in 1984. (10) It was the result of a year's long campaign spearheaded by Tom Brougham. Less audacious than the frontal challenges to marriage that had flamed out spectacularly in the 1970's, Brougham's argument was simpler and--not incidentally--successful. Since he was a city employee, his life partner, (11) Barry Warren, should have been entitled to the same benefits as any other employee's legal spouse. (12)

   Brougham's effort focused on same-sex couples only because, as he explained to me, (13) opposite-sex couples had the option of marrying. But other localities within the state quickly came to see that the unfairness he had identified also affected straight couples who simply did not choose to marry. Put starkly, the domestic partnership raises this question: Why should valuable benefits be limited to married couples? This question is especially relevant in cases where benefits are in the form of employee-conferred compensation. Other limiting benefits, such as health insurance to legal spouses, clearly skews the overall payments in favor of married couples.

   Domestic partnerships came to flourish in the years to follow. More than any of the other types of relationship recognition spun off by the marriage equality movement, domestic partnerships were chameleons. Although they began as a way of providing same-sex couples with benefits, over time some localities began extending them to opposite-sex couples. The nature and extent of the benefits also varied considerably, depending on both the power of the entity granting them and the politics involved in a given area. Then the domestic partnership exploded outward from cities and towns to entire states, beginning in California. (14) California's law split the difference between the same-sex only/opposite-sex eligible divide by permitting opposite-sex couples to register if, and only if, one member of the couple was at least sixty-two years of age. (15)

   Moreover, the domestic partnership migrated from the public sphere to the private one, as corporations increasingly saw the benefits of extending equal benefits to their gay and lesbian employees. As support for LGBT rights grew, particularly in more progressive precincts, employers recognized that extending benefits in this way was not only fair, but also a way of recruiting talented employees they might otherwise lose to more forward-thinking corporations. Over time, a public relations advantage to this approach became evident. These employers also extended benefits to unmarried opposite-sex couples. (16)

   In this thumbnail sketch of the domestic partnership's development, one point emerges: while the domestic partnership was created as a way to address a well-defined inequity relating to employee compensation without taking on the then-impossible job of challenging the exclusion of same-sex couples from marriage, its logic of equality led to an explosive and multi-dimensional growth. An institution created to deal with actual needs is only justified by its ability to meet those needs, which are ever-evolving.

   It is hard to answer the question whether domestic partnerships should be retained because, as explained above, they are not one thing but many different legal statuses. Some domestic partnerships, as in the state-wide version available in California, are really marriage by another name and can be analyzed in the same way as the civil union. As for the other variations, more thought should be given to how these domestic partnerships are doing at addressing the needs of real couples and their families. Some may need or want the more limited package of rights and responsibilities conferred by the particular form of domestic partnership they are in. It is also important, when discussing domestic partnerships, to separate out the private sector's initiatives, which will and should continue to evolve as employers seek ways to attract and keep employees whose lives are multiply diverse.

3. CIVIL UNIONS

   While the domestic partnership bubbled up from the ground through the diligence of committed activists, civil unions are a state-wide and (mostly) uniform legal status. The difference is attributable to their distinctly dissimilar origins.

   In 1999, the Vermont Supreme Court decided Baker v. State. (17) That decision responded to the demand of three same-sex couples for marriage licenses in a creative way: the state legislature could not deny the benefits of marriage to same-sex couples, but it was not obligated to confer the title or status of marriage upon these couples. (18) Rather, the court--over a strong and principled dissent by Justice Denise Johnson(19)--left to the legislature the charged question of how best to balance the requirements of equality with the political realities. Pointedly, the court noted that previous attempts by courts to require full marriage rights to same-sex couples had ended badly. In both...