Beyond (Straight and Gay) Marriage: Valuing All Families Under the Law.

• Author: Wax, Amy L.
• Position: Book review

BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW. By Nancy D. Polikoff. Boston: Beacon Press. 2008. Pp. 259. $24.95.

Students of patent law learn the doctrine of equivalents. According to the doctrine, a patent protects an invention that does "'the same work in substantially the same way, and accomplish[es] substantially the same result,'" as the device described in the patent, even if it differs "'in name, form, or shape.'" (1) In her new book, Nancy Polikoff (2) has fashioned something like a parallel doctrine for families. Let's call it (with a slight play on words) the family law Doctrine of Equivalence. In today's world, according to Polikoff, a broad set of relationships now plays the same role as marriage and traditional families once did in people's lives. Conventional forms of family should thus receive no special legal protection. Rather, the law should extend similar privileges to the range of living arrangements that individuals choose for themselves (p. 3).

Like its patent law parallel, the family law Doctrine of Equivalence is grounded in an empirical observation: for more and more people, new family structures have effectively replaced conventional forms. It follows that the law should disclaim distinctions that favor traditional families over alternatives. Although variations on Polikoff's theme find expression in the work of other academic and nonacademic commentators, (3) her case for revolutionizing the legal regulation of families is particularly impassioned, learned, and clear. She wants to abolish a system grounded in formally defined relationships like biological parenthood and marriage in favor of functional incidents like actual dependency, mutual aid and affection, and voluntary association. In her ideal scheme, the category of family would be radically transformed. Entitlements and rights traditionally grounded in marriage and biological relationships will instead arise from a virtually unlimited set of self-declared affiliations (pp. 208-14).

Polikoff bills her push to expand the range of protected and respected family forms as a practical accommodation to social change and as a long overdue attempt to level the playing field for those who reject or fall outside conventional structures. But her project draws considerable strength from a wariness toward marriage that proceeds from familiar feminist assumptions. She is not shy about stating the goal: to "'knock marriage off its perch'" (p. 90). For Polikoff, marriage cannot be redeemed from its patriarchal origins. As society's main instrument for "polic[ing] the boundar[ies] between acceptable and unacceptable sexual expression" (p. 11), enforcing rigid gender roles, and imposing "catastrophic consequences" on unconventional sexuality, marriage is a central instrument of women's subordination (p. 12). Because she rejects the distinction between licit and illicit sexual conduct, Polikoff has no use for marriage as an instrument of social control. For her, marriage's "sexuality-channeling" function is both oppressive and ineffectual and serves no legitimate purpose (p. 11). Rather, marriage is both arbitrary and overly restrictive--an artificial construct that imposes unjustified costs on those who fail at it or choose to deviate from it. Whether they know it or not, women are best served by stripping marriage of its social and legal privileges.

Polikoff's feminist disdain for marriage leads her straight to the family law Doctrine of Equivalence. From her premise that marriage is a tainted institution harmful to women's interests, she concludes there is no reason to believe that "marriage is better than other family forms," and thus no warrant for its favored position in law and policy (p. 99). Her goal is not to mend marriage, but ultimately to end its hegemony (Chapter Seven). Unlike some feminists, she does not come out for abolishing the institution of marriage outright (although one surmises this would not displease her). Rather, she is adamant about eliminating its advantages and significance. The objective is to reform current law to deprive marriage of its special place. According to her, marriage should not be favored, encouraged, or privileged in any way. It should receive no approbation, nor be accorded distinct recognition of any kind.

While Beyond (Straight and Gay) Marriage is a valuable addition to the ongoing debate about how the law should regulate marriage and family life, its thesis is ultimately flawed. The legal project of abolishing all distinctions between traditional married couples with children and other forms of family is both ill advised and futile. The evidence is overwhelming that heterosexual married-couple families play an indispensable role in social life because they are best equipped, on average, to perform the central functions of childrearing and social reproduction. Because not all family types are intrinsically as good at these tasks, not all families should be regarded as equivalent, either informally or in the eyes of the law.

Before delving into the shortcomings of Polikoff's position, it is important to note this book's virtues. Polikoff is a deft navigator of the debate now raging over the future direction of the family and the law regulating it, and a capable and shrewd expositor of her own commitments. Her skillful outline of current state and federal trends, and her clearly defined position, make this book an important contribution to the debate on marriage. Although existing ideas about family run the gamut, the principal approaches can be denominated as traditionalist or pluralist. (4) Polikoff resoundingly rejects the traditionalist framework, which stresses the centrality and desirability of marriage, the significance of sex differences, and children's paramount interest in being raised by their own two biological parents, because she does not regard heterosexual, married couples as the fundamental pillar of social reproduction, she seeks to debunk the standard justifications for promoting the formation of these conventional families. Embracing a pluralist approach, she sees biological links as dispensable and biological parents' participation in childrearing as optional. For her, there is no natural hierarchy among different settings for raising children and no reason to believe that two-parent married-couple families are intrinsically better. As a framework for securing the well-being of its members, such traditional families are neither morally nor functionally superior to other types that have now proliferated in society. Indeed, no type of family deserves greater social or legal recognition.

Polikoff's clarity on where she stands is a strength. She draws a clear line in the sand between the opposing positions that define the culture wars over family form, and places herself firmly on one side. Likewise, Polikoff pulls no punches in confronting the tensions between her commitment to family diversity and the push to legalize same-sex marriage. In her forthright refusal to paper over irreconcilable differences, Polikoff draws a useful picture of the same-sex marriage movement's cultural commitments and their conflict with aspects of the pluralist manifesto (Chapters Three through Five). As Polikoff recognizes, most proponents of same-sex marriage do not seek to demote marriage from its elevated social and legal position, but rather to reform it selectively (Chapter Five). Apart from seeking admission for same-sex couples, proponents advocate no fundamental change in marriage's meaning or hallowed social role. Rather, they seek to signal their reverence and their willingness to subject themselves to marriage's strictures and responsibilities. Thus, the same-sex marriage movement is essentially conservative: it does not challenge the marital status quo, save for finding a place for gay couples within it.

Indeed, many gay-marriage proponents recognize that the most persuasive case for inclusion rests on acknowledging marriage's unique and pivotal role in social relations. Vocal advocates such as Andrew Sullivan and Jonathan Rauch laud marriage's virtues, extol its advantages, and seek to preserve its formal and informal incidents (pp. 83-84). They take as given that marriage is uniquely effective in protecting adults' interests in stability, prosperity, and happiness. Although gay-marriage proponents are generally tolerant of family diversity and support government aid to unconventional families, many acknowledge marriage with two parents as the ideal setting for raising children. (5) All in all, same-sex marriage proponents do not seriously question that marriage is the best foundation for cohesive families. Nor do they deny that the institution possesses unique strengths. (6)

Polikoff will have none of this fetishizing of marriage. She launches a bold and sustained critique of the legalization movement as fundamentally at odds with the goal of "facilitating social, legal, and economic support for diverse family forms outside the patriarchal family" (p. 48). If, as she maintains, the ultimate objective is a system that values all families, then it follows that "less marriage, not marriage, [is the] vision" (p. 48; emphasis omitted). Although she acknowledges that giving same-sex couples marital privileges might foster equal rights for gays in the short term, she insists that "it is not a sensible approach toward achieving just outcomes for the wide range of family structures in which [gay and other] people live. Those outcomes depend on eliminating the 'special rights' [for] married couples ... and meeting the needs of a range of family forms" (p. 84).

In Polikoff's view, not only does the push to recognize same-sex marriage offer little to most unconventional families, but "the logic of the arguments made to win converts to [gay] marriage equality risks reversing, rather than advancing, progress for diverse famil[ies]" (p. 98). Although Polikoff...