MARRIAGE APOSTATES: WHY HETEROSEXUALS SEEK SAME-SEX REGISTERED PARTNERSHIPS.

• Author: Palazzo, Nausica

Abstract

Same-sex marriage is now a reality across Western countries. While this was a positive achievement for the LGBTQ community, some crucial questions remain unanswered. One of these questions concerns the future of registered partnerships, such as domestic partnerships or civil unions. After the legalization of same-sex marriage, most states are simply phasing such partnerships out.

I argue against this trend. Based on an original analysis of empirical data and case law, I contend that these partnerships retain value for non-traditional families. In fact, states must introduce registered partnerships open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.

First, I survey empirical research showing that (1) less traditional families, including opposite-sex couples, are signing up for registered partnerships at increasingly high rates, where available; (2) interest in such partnerships is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.

Second, I outline the legal and theoretical justifications for extending same-sex legal partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to registered partnerships reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a choice-based approach.

Ultimately, I offer guidance to groups willing to engage in legal mobilization and to policymakers in crafting a registered partnership that would be suitable for modern couples. Families that do not resemble the traditional marital family model continue to fly under the radar of the law. Resurrecting these laws can fix the problem of their legal invisibility.

INTRODUCTION

Same-sex marriage is now recognized in several jurisdictions in the West. (1) This result is ascribable to the untiring work of LGBTQ groups that have utilized much of their energies to attain it. However, pervasive forms of discrimination on the basis of sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. (2) As Justice Kennedy's immortal words in Obergefell attest to, "[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were." (3) After the Supreme Court's decision in Obergefell, gay and lesbian couples could also finally create this most profound of all unions, and cease being second-class citizens.

Since marriage was seen by many as "the final stop for 'full equality' for lesbians and gay men," (4) a question lurked behind these events: "What now?" The question has various ramifications. (5) "What now?" within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. (6) A second, more crucial "what now?" bears upon the future of family law and policy. It concerns the fate of registered partnerships, which in many places have been erased at the stroke of a pen after marriage equality. (7) By the term "registered partnerships" (also "RPs"), I refer to all recognition models whereby two persons take affirmative steps to register their relationship and gain a bundle of legal benefits, rights, and obligations: civil partnerships, domestic partnerships, civil unions, reciprocal beneficiary laws, civil pacts of solidarity, etc. My argument in this Article is that these laws are still very much relevant. More specifically, I contend not only that they should be retained or reintroduced for same-sex couples but, more generally, that they should be available to all couples that eschew the paradigm of the traditional family, including two committed friends or two relatives.

Marriage equality seems to have sounded the death knell for many of these laws. This outcome was somewhat predictable, as registered partnerships had come to be seen as either "useless" or "odious"--useless as they exhausted their role of being a temporary fix before "full" marriage equality; odious as gay and lesbian couples perceived them as second-class statuses for second-class citizens. (8) Consequently, once same-sex marriage became legal nationwide in 2015, the seemingly natural reaction has been registered partnerships' erasure. (9) This occurred through a variety of techniques. A standard reaction has been a gradual phasing out of legal partnerships. Other jurisdictions have opted for their forcible conversion into marriage. Others yet have asked couples to marry by a certain date to avoid losing their family benefits. We should sharpen our critical edge and ask whether indulging a dynamic whereby legislatures erase registered partnerships is beneficial to modern couples. There seems to be something special about these laws that renders them more attuned to the values of modern families.

Registered partnerships can promote a more pluralistic model of relationship recognition (10) and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. An examination of jurisdictions that have adopted similar laws as an alternative to marriage demonstrates this point. A registered partnership is viewed as an alternative to marriage when both opposite- and same-sex partners can sign up. (11) The rationale for alternatives to marriage is not that they offer a separate-but-equal regime for same-sex couples, but rather that they offer a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws in the United States are Illinois, Hawaii, and Colorado; and outside of the United States, France, Belgium, the Netherlands, and Luxembourg. (12) Interestingly, in these jurisdictions, not only are partnerships being preserved, but they are also becoming increasingly popular amongst opposite- and same-sex couples. (13) Empirical research further shows that registered partnerships are especially appealing to couples that eschew the model of the archetypical marital family. (14) These include couples disenchanted with the ideal of fidelity or the imperative of having children, as well as those who live in less traditional financial arrangements. (15)

There is a second powerful demonstration of the relevance of these laws to modern couples. "Heterosexuals" across Europe are now engaging in strategic litigation in order to access same-sex registered partnerships, i.e., regimes only open to same-sex couples. (16) This might be surprising at first sight. How ironic that after gay and lesbian couples have fixed their perceived main source of discrimination--their exclusion from marriage--"privileged" or "mainstream" heterosexuals are now appropriating the language of equality to take over registered partnerships. My analysis, however, demonstrates that these heterosexual partners are not mainstream at all. There is a non-traditional component to their family arrangement that is slipping under the radar and deserves protection through means other than marriage.

In light of this development, this Article contends that the role for registered partnerships in a world with same-sex marriage is that of offering a legal structure to less traditional family arrangements (through RPs open to all couples, including friends and relatives). This Article then makes a second distinctive contribution. It systematizes the motives that drive couples to claim access to these laws and describes how these motives morph into legal arguments. Much literature has addressed the problem of the fate of registered partnerships on both sides of the Atlantic. (17) Yet, what is still missing is a detailed account of how the expansion of these laws to all couples regardless of gender can occur. (18) American litigation is of little help in this regard, because opposite-sex couples in the United States have not mobilized to gain access to civil unions or domestic partnerships. In contrast, Europe is a site of considerable experimentation and (sometimes involuntary) innovation. Especially instructive is the experience of states opening their partnerships to all couples from the beginning--including non-romantic couples in Belgium--and the recent U.K. litigation through which "heterosexuals" gained access to same-sex civil partnerships. (19)

European case law helps discern the legal-philosophical reasons that inform opposite-sex couples' claims in the courtroom. I organize such motives around three approaches: a status-based, a utilitarian, and a choice-based approach. If the couple pursues social status recognition, the argument is that the partners suffer from expressive harms because of their exclusion from the regime. A utilitarian argument stresses the need for the couple to have access to a more flexible and lighter legal regime. A choice-based approach argues that adding options to the menu of family regimes is a value per se, due to its ability to accommodate different conceptions of the good life.

The systematization of these approaches is especially needed if one considers the patchwork landscape of registered partnerships. It is of reduced utility to discuss their (re)introduction in abstract terms. For instance, some laws are "light" and only confer a pared-down list of benefits while others mimic marriage. (20) Some regimes are still in place and others have been repealed (an outcome that hinges on whether change is pursued through courts or policymakers). Some are already available to all couples regardless of gender, while others are not. (21) In light of this variation, examining how the litigation strategies of...