In this Article, Professor Colker argues that the legal system does not simply privilege those in marital relationships but has now begun to privilege those in "marriage-like" relationships through what she terms a marriage-mimicry model. She uses the law of domestic violence to critique this model. She traces the haphazard development of the law of domestic violence and argues that it has served to underprotect many of the victims of domestic violence because lawmakers have reflexively only provided legal recourse for those in marriage-like relationships without asking who is most in need of legal protection. She argues that the legal system should disentangle privileges and benefits from marriage and, instead, use a functional approach to deciding who receives those benefits.
TABLE OF CONTENTS INTRODUCTION I. THE LAW OF DOMESTIC VIOLENCE A. Historical Developments B. Domestic Violence Protection Today II. SAME-SEX MARRIAGE AND THE LAW OF DOMESTIC VIOLENCE A. The Extension Strategy B. Same-Sex Marriage Ban and Domestic Violence III. THE DISENTANGLEMENT SOLUTION CONCLUSION APPENDIX A APPENDIX B INTRODUCTION
In our society, few oppose marriage. (1) Liberals, the religious Right, law and order conservatives, gay rights advocates, and even feminists, support some conception of state-supported marriage. (2) These groups olden disagree on the proper role of the state in the regulation of marriage, but they are committed to law reform consistent with their version of a stronger marriage institution. (3) Because of the broad-based support for marriage within our society, no successful politician can oppose the institution. (4) Our legal system generally reflects support for the institution of marriage. (5) It also privileges those who are in "marriage-like" relationships that are characterized by monogamous, long-term, intimate commitments and financial interdependence. (6) This Article terms that framework of according benefits a "marriage-mimicry" model. The legal system defines who gets privileges and benefits by discerning who is married or most like a married person rather than by asking who should receive these benefits based on the purpose of such benefits.
The law of domestic violence reflects this marriage-mimicry model. (7) Legislatures first began to provide legal recourse to married women who were victims of domestic violence in the 1970s and 1980s through the development of warrantless arrest statutes, the availability of civil protection orders, and the funding of battered women's shelters. (8) In the last two decades, legislatures have extended the law of domestic violence to cover others through a marriage-mimicry model. (9) Under this model, individuals can obtain legal recourse from domestic violence if they are in relationships that look like traditional, heterosexual marriages in that they are characterized by two people who have financial interdependence, share an intimate relationship, live in the same household, and have a long-term commitment to the relationship.
While it is a positive development that the law has expanded the scope of who may obtain legal recourse from domestic violence, the marriage-mimicry model is not necessarily the correct framework, because it was developed without lawmakers asking the fundamental questions of who is most in need of legal recourse and how the law can best provide that recourse. A more functional approach would permit the legal system to disentangle privileges and benefits from marital status rather than reflexively extend privileges and benefits under a marriage-mimicry model. (10) The reflexive use of a marriage-mimicry model under the law of domestic violence is in sharp contrast to the use of other categories in our legal system. We no longer allow the state to use race, gender, national origin, or religion as a proxy for who should receive privileges and benefits. A more functional approach would constitute a fairer and more efficient use of the states' financial resources.
The law of domestic violence is not unique in employing a model that privileges marriage. A General Accounting Office (GAO) report has documented that the federal government conditions 1049 federal benefits on an individual's marital status. (11) The marriage-mimicry model conditions a subset of such privileges or benefits on an individual's marriage-like status when the individual is not actually married. The recent recognition of same-sex marriage or domestic partnerships at the state level has followed the marriage-mimicry model. (12) The availability of same-sex marriage or domestic partnerships reinforces the notion that certain individuals in our society should receive special privileges and benefits because of their marriage-like status, leaving other individuals with little political recourse to attain such privileges and benefits. (13) Some courts have recognized that the denial of privileges and benefits to certain individuals because of their gender or sexual orientation violates the principle of equal protection. (14) They have readily endorsed a marriage extension remedy without considering whether the proper remedy is to disentangle marital status from privileges and benefits.
The Feminist movement, liberalism, the law and order movement, the religious Right, and, most recently, the gay rights movement have contributed to this marriage-mimicry model within the law of domestic violence and marriage. The feminist movement has sought to make marriage a better and safer place for women through state intervention when men have committed rape or domestic violence against women. (15) Liberals have supported no-fault divorce and simpler alimony laws that would both improve the institution of marriage and minimize the state's role in individuals' private lives. (16) Meanwhile, the religious Right has sought to infuse state-recognized marriage with its moral perspective through covenant marriage (17) and bans on same-sex marriage. (18) The law and order movement has sought mandatory arrests for perpetrators of domestic violence and enhanced penalties for those who fail to pay child support in order to improve the institution of marriage. (19) The gay rights movement has sought to make marriage available to same-sex couples thereby making the institution a fairer and more equitable institution. (20)
The result of these varied efforts has been the development of a law of marriage and domestic violence that does not consistently reflect the perspective of any of these political movements. Feminists have succeeded in getting each state to provide legal recourse to married women who are victims of domestic violence but the liberalization of the law of child custody and alimony has olden placed married women in a more precarious position than before the advent of the second wave of feminism, making it harder for them to be able to afford to leave abusive relationships. (21) Liberals have succeeded in getting the state to intrude less into the private sphere through invalidation of abortion and sodomy statutes as well as the creation of no-fault divorce but they have also seen an increase in state regulation of the private sphere through the law of marital rape and domestic violence. (22) The law and order movement has attained stringent warrantless arrest rules in the domestic violence context but these rules are often underenforced due to the continuing hesitancy of many police officers to intervene into family relations. (23) The religious Right has been able to impose its version of marriage on society through the creation of the option of covenant marriage and bans on same-sex marriage but it has not been able to prevent the state from creating marriage-like models such as domestic partnerships. (24) The gay rights movement has attained more privileges and benefits for same-sex couples, including legal recourse from domestic violence; nonetheless, states have often relegated same-sex couples to the status of a second-class domestic partnership with fewer privileges and benefits than marriage. (25)
Divergent forces operating on one area of the law are nothing new. Law is always a source of compromise. But the piecemeal development of the law of domestic violence has created a patchwork of protections that do not provide adequate legal safeguards to the victims of domestic violence. The result has been a marriage-mimicry model under which states provide individuals with legal recourse from domestic violence if their relationship looks like a marriage, because that model served as the common ground among these four political perspectives. The marriage-mimicry model often leaves individuals underprotected (26) from domestic violence if they cannot establish that they are married or were married to the alleged abuser or, in some other way, demonstrate that they had an intimate relationship with the alleged abuser or shared the same household. Uncritical acceptance of the marriage-mimicry model has caused policymakers not to ask the functional question of who is in need of domestic violence protection and how the law can best protect those individuals.
This Article consists of three parts. Part I traces the development of the law of domestic violence, discussing how it has developed under the marriage-mimicry model. Part II connects the development of the law of domestic violence to the same-sex marriage movement. It shows how the same-sex marriage movement has contributed to the marriage-mimicry model. Part III argues for a marriage-disentanglement model rather than a marriage-mimicry model in response to equal protection challenges to the law of marriage and domestic violence. Part IV concludes this argument.
THE LAW OF DOMESTIC VIOLENCE
Historically, society tolerated men beating their wives, (27) but the situation is quite different today. Every state offers some remedy for domestic violence within marriage and most states...