Ten Propositions About Legal Recognition of Same-Sex Partners

• Author: Arthur S. Leonard
• Position: B.S., Cornell University; J.D., Harvard Law School
• Pages: 343-362

B.S., Cornell University; J.D., Harvard Law School. A faculty research grant from New York Law School assisted in the preparation of this article.

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I Introduction

In March 2001, about half a century after the formation in Los Angeles of the Mattachine Society, the first gay rights organization in the United States to have more than a fleeting existence,¹ we meet to talk about formal legal recognition of same-sex partners, something that the Mattachine founders could barely dare to think about. In April 2001, same-sex marriage, de jure as well as de facto, became a reality for the first time in a Western industrial country, the Netherlands.² Last year, Vermont became the first American state to offer something approaching de jure civil marriage for same-sex partners with the enactment of the Civil Union Law.³ There are also important developments elsewhere, such as in South Africa,⁴ Canada,⁵ France,⁶ the Scandinavian countries,⁷ and other U.S. states.⁸

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In other words, in various places and for various purposes, there is already a considerable amount of legal recognition for same-sex partners -- to the extent that it is plausible to debate questions like "what kind of legal recognition should we be seeking?" and "what strategies should we be taking to pursue full recognition - whatever that may be?" I propose to start today's discussion with ten propositions about this subject. These propositions are intended to spark discussion and should not be taken as conclusive, final statements.

Proposition 1. We will not have true social and legal equality for sexual minorities until same-sex couples can have the same forms of legal recognition for their relationships that opposite-sex couples have. This means true equality requires that same-sex couples be able to marry if they desire.

So far, the closest we have come in the United States to achieving same-sex marriage is the Vermont Civil Union Law,⁹ which, as required by the Vermont Supreme Court's decision in Baker v. State,¹⁰ was intended to provide same-sex couples with the same bundle of rights and responsibilities that marriage provides for opposite-sex couples, at least to the extent this can be done under state law.¹¹

Marriages and civil unions are both socially-constructed status relationships defined by tangible and intangible components. The tangible components consist of the legal rights and responsibilities associated with the relationship under federal, state, local, and even international law. Vermont civil unions do not expressly have all the legal rights and responsibilities that accrue to Vermont married couples under all these legal regimes, but only those legal rights and responsibilities provided by state law. It is possible that other jurisdictions may decide to recognize Vermont civil unions in particular factual contexts. This will especially be true if the other jurisdictions also have something in the nature of civil unions or recognized domestic partnerships and especially if some courts from outside Vermont feel compelled in particular contexts to recognize such unions based on the Full Faith and Credit Clause of the U.S. Constitution.¹² However, suchPage 345 possibilities can only be speculative at this early point. On the face of things, no federal marital rights or benefits are even arguably included, many of which are potentially important for particular same-sex couples.¹³

Although it is not certain that Vermont civil unions will have no legal effect outside of that state, the legislature's decision to implement Baker by adopting the Civil Union Act rather than by simply amending the marriage statute to eliminate any requirement that the parties be of the opposite sex may significantly undermine the ability of same-sex couples united in Vermont to mount effective legal challenges to the possible refusal of other jurisdictions to recognize that the same-sex partners are entitled to be treated as legal spouses of each other.¹⁴

Also, by directing same-sex couples into a "different" status relationship that is not called marriage, Vermont may have failed to afford same-sex couples rights they might have under international law principles of comity by which nations recognize marriages contracted in other nations.¹⁵ While it appears that recognition of marriages across national boundaries is largely discretionary, it is unlikely that norms of marital recognition currently indulged by most countries would apply to such unusual a structure as a "civil union."¹⁶

The marriage relationship also has intangible components, symbolic and social.¹⁷ By creating a different status relationship with a different name, Vermont has deliberately failed to confer the intangible components that accrue to the term "marriage" in our culture. Establishing a "different" statusPage 346 from marriage for same-sex couples was done precisely to preserve the preferred status of marriage and to avoid any interpretation equating what is available for same-sex couples with traditional marriage. This has the effect of denigrating same-sex relationships as less valuable to the partners and to society. This is the very opposite of the equality that same-sex couples were seeking by bringing the Baker lawsuit.¹⁸

If our goal is equality, marriage must be part of the goal.

Proposition 2. Marriage is not necessarily the only desirable form of legal recognition for couples and coupledom is not necessarily the only desirable adult family structure.

We need to take a hard look at marriage itself and ask whether it is right for every couple, including same-sex couples. People are voting with their feet on this issue: many opposite-sex couples do not think that marriage is the most desirable relationship for them. This conclusion is based on census figures showing continued growth in the number of couples who are living together without marrying.¹⁹ For an opposite-sex adult couple to openly and notoriously cohabit without being married used to be unthinkable, an invitation to social ostracism and in many places actually illegal. It is still technically illegal in some places, such as Virginia,²⁰ but is now commonplace almost everywhere and it is also very commonplace for married couples to separate and to divorce. It has become common for people to have several legal spouses over the course of their lives or to have a series of partners, some married and some not. The proportion of the population consisting of married opposite-sex couples has been declining for a long time so that it is inaccurate to talk about an "average" or "typical" family consisting of a husband and a wife with or without children.²¹ If many opposite-sex couplesPage 347 are not interested in marriage despite its legal advantages, it stands to reason that marriage would not necessarily be the goal for all same-sex cohabiting couples, either.²²

But there are many legal attributes of marriage that both opposite-sex and same-sex couples may find desirable without marriage if that is possible. This suggests that there may be a range of legally-recognized relationships that would be desirable, leaving grounds for couples to choose what fits their needs. Domestic partnership, under various nomenclatures, has emerged as an increasingly available choice for both opposite-sex and same-sex couples. Municipal employers that have adopted non-discriminatory domestic partnership plans report that both opposite-sex and same-sex couples take advantage of them in order to obtain family health insurance coverage or other privileges.²³ Domestic partnership registration and recognition laws can be structured to include those rights that are most relevant for unmarried cohabitants. States and localities can serve as laboratories for trying out different forms of recognition with different bundles of rights depending upon the expressed needs of local residents.

Also, some couples have resorted to adult adoption to create legally-recognized families for particular purposes of protecting housing rights or strengthening rights of inheritance and there is some legal authority supporting this mechanism.²⁴

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Marriage is now limited to two adults of the opposite sex. However, units of more than two adults, while not common, are not unheard of, and some people in Utah have actively resisted the requirement to limit themselves to the traditional dyad in forming their heterosexual family units.²⁵ The Old Testament contemplated a man having multiple wives.²⁶ American social history reveals that the extended family as a living unit has a long and distinguished history.²⁷ Without suggesting that some form of polygamy should be the goal of the gay rights movement, it is worth contemplating the possibility that more extended living groups of emotionally interdependent adults could merit legal recognition to provide enforcement to emotionally and economically viable methods of living. Perhaps couples should not be exalted as the only conceivable family unit without considering the possibility of other structures for those who want them.²⁸

Proposition 3. It is unlikely legal marriage for same-sex couples in the United States will be achieved solely through litigation.

Reviewing the history of litigation over same-sex marriage in this country, it seems that state courts of last resort are unlikely to order a state to allow same-sex couples to marry even if they think that the present exclusion from marriage raises important equal protection concerns.

Same-sex couples began litigating for the right to marry in the 1970s. Cases in at least three different states during that decade proved completely unsuccessful and efforts along those lines were abandoned for some time.²⁹Page 349 The court decisions were completely dismissive in evaluating the plaintiffs' equal protection and due process claims. Many of the attorneys working for the gay rights public interest...