Domestic partnership, civil unions, or marriage: one size does not fit all.

• Author: Ettelbrick, Paula L.

Among this remarkable gathering of scholars, I'd like to talk to you as a legal strategist and family advocate. And, I'd like to voice my continued belief that the best course for family advocates to pursue is that which recognizes the caring and committed relationships of all families--not just those who wish to marry and not just those that include lesbian and gay couples.

Not so long ago, the term "gay or lesbian family" was an oxymoron--a legally impossible and functionally undesirable notion. Lesbians and gay men did not fit into the world's understanding of family. At the same time, the idea of "family" had not yet been claimed by lesbians and gay men. Standing here now, it's difficult for most of us to even remember those times given the virtual revolution that has occurred in re-thinking and re-configuring the basis for recognizing, or not, certain kinds of families. It is important to remind ourselves, particularly in a law school forum like this, that social change doesn't just happen. It is a dynamic process involving theory, strategy, advocacy, and the story of human lives. It is the dynamic process of history in which we know that nothing ever stays the same--even the role, function, and definition of family. Despite the religious right's insistence on the existence of "the traditional family," from which far too many Americans have deviated, family meanings and structures are far from stable over time, and change in significant ways with each generation.

In the past fifty years alone, family structure and meaning have changed remarkably as a result of several distinct and intertwined social justice movements. The civil rights movement challenged proscriptions against interracial marriages between whites and people of color.(1) The feminist movement has influenced major systems affecting women and family structures, including the legal and social rules of marriage, workplace policies that reinforced women's private role as mother, criminal abortion laws restricting women's personal decision-making, and codes of sexual conduct. A poverty-focused social justice movement carved out a stronger government obligation to provide support to poor people and constructed single women with children (and without men) as families, not deviants. The sexual liberation movement that was a part of both feminism and the early gay rights movement pushed past the spoken code of "sex is for reproduction" to the unspoken reality, "sex is also pleasurable," thus reframing the role of sex in our culture. And, of course, the lesbian, gay, bisexual, and transgender movement has further challenged not only male/female gender roles but also the normative rules that reinforce the "you need a man and a woman to make a family" rule. The LGBT movement also has played a most significant role in questioning the role of marriage as the sole source of benefits to families.

Each piece of this broad history, and much more, has contributed concretely to important policy and legal shifts in defining family as a group of people who love, care for, and support one another, regardless of their gender, race, sexual orientation, marital status, or economic class. Families do indeed co-exist outside of marital structures. Functional parent-child relationships do indeed co-exist with biological relationships. In fact, the norm seems to be the diversity of family form, not the one-size-fits-all structure of marriage and biology. It is this perspective that has most shaped the lesbian and gay community's approach to family recognition. And, it is this perspective I'd like to address today.

Some historical background, solely from my personal vantage point as a legal advocate who has had the good fortune to play a role in the development of some of the key principles of lesbian and gay family law over the last many years, illustrates, I believe, our community's investment in shedding the one-size-fits-all approach to family definition. I hope I'll not be too redundant to Professor Ota's excellent recounting of lesbian and gay family history.

It's impossible to underestimate the legal and social significance of Marvin v. Marvin,(2) the California case that established for the first time that an unmarried partner can be held to certain financial obligations upon the break up of a relationship.(3) Prior to Marvin, courts had steadfastly resisted any argument that might take them down the path of recognizing that the relationship of an unmarried couple might in any way be treated seriously. Courts had dual fears: first, that they'd be inadvertently enforcing prostitution agreements (as if one cannot tell the difference between prostitution and a non-marital relationship); and, second, that they'd dilute the exclusive role of marriage. In fact, Marvin recognized the exploitative reality in failing to enforce agreements between people in intimate relationships that would clearly otherwise be enforced between parties who are not intimate. Lesbian and gay couples have been prime beneficiaries of the Marvin principle. It is one piece of a very large puzzle of getting courts and policy makers to take our relationships seriously. Attempts to void the property-based agreements of lesbian and gay couples, as well as others, on the ground that they violate public policy are now soundly rejected.(4)

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