What if? The legal consequences of marriage and the legal needs of lesbian and gay male couples.

AuthorChamber, David L.

Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country - taxation, torts, evidence, social welfare, inheritance, adoption, and on and on. In this article I inquire into the patterns these laws form and the central benefits and obligations that marriage entails, a task few scholars have undertaken in recent years. I have done so because same-sex couples, a large group not previously eligible to marry under the laws of any American jurisdiction, may be on the brink of securing the opportunity to do so in Hawaii.(1) I wanted to know the benefits and burdens that legal marriage might extend to this group and ask whether the consequences would be sensible and appropriate for same-sex couples. How, in other words, would this institution, molded over time for persons of different sexes, apply to those with different differences?

My findings form the core of this article: that the laws assigning consequences to marriage today have much more coherence than has been commonly recognized, largely falling within three sorts of regulation, that each of these three sorts of regulation would, as a whole, fit the needs of long-term gay male and lesbian couples, that while the law has changed in recent years to recognize nonmarital relationships in a variety of contexts, the number of significant distinctions resting on marital status remains large and durable, that in some significant respects the remaining distinctive laws of marriage are better suited to the life situations of same-sex couples than they are to those of the opposite-sex couples for whom they were devised, and, most broadly, that the package of rules relating to marriage, while problematic in some details and unduly exclusive in some regards, are a just response by the state to the circumstances of persons who live together in enduring, emotionally based attachments. Legal marriage, somewhat surprisingly to a person long dubious of the state's regulation of nonviolent private relationships, has much to be said for it.

I need to make clear what one of my points is not. I do not claim that, if a new legal code of human or family relationships were developed completely afresh, governments should continue to sanctify the two-person enduring union over every other relationship in precisely the manner they do today. Rather, my claim is that, after thousands of years of human history, the union of two persons in a relationship called "marriage" is almost certainly here to stay, that the special rules for married people serve legitimate purposes, and that gay men and lesbians should not shrink from embracing them, nor should politicians shrink from extending them.

Just at the point that I finished this article, Congress acted to limit the effects that legal marriage would have, if Hawaii or any other state moved to permit same-sex couples to marry. The new Defense of Marriage Act" declares that all federal statutes and regulations that refer to married persons or to spouses shall be read as applying to opposite-sex couples only.(2) This article persists in reviewing both federal and state laws that bear on married persons, for the purpose of my exercise of imagination - the "what if?" - is not to explore what will actually happen if gay couples are permitted to marry in Hawaii, but rather to ask how opposite-sex married persons are treated under the law today and hold these laws up to the situations of lesbian and gay male couples. By the end of the exercise, the meanspiritedness of Congress's actions may be more apparent, for the rules that it has gone out of its way to deny to same-sex couples are ones that I believe will be shown to be fully applicable to the lives of most gay men and lesbians in long-term relationships.

  1. Postures Toward Marriage

    A large proportion of American adults who identify themselves as lesbian or gay live with another person of the same sex and regard that person as their life partner. Exactly how many gay or lesbian adults there are in the United States and what proportion live with another in a long-term relationship are not possible to calculate on the basis of existing information. Many lesbians and gay men, perhaps most, refuse to identify their sexuality to strangers who finds their doorbell or call them on the telephone.(3) Still, every survey of adult Americans willing to identify themselves as lesbian or gay finds that a majority or a near majority are living currently with a partner.(4) Increasing numbers of these couples are celebrating their relationships in ceremonies of commitment.(5) Those who participate commonly refer to the ceremonies as weddings and to themselves as married,(6) even though they know that the ceremonies are not legally recognized by the laws of any state. If states extend the legal right to marry, it is highly probable that large numbers of gay and lesbian couples would choose to participate. In a recent survey of nearly 2600 lesbians, for example, seventy percent said they would marry another woman if same-sex marriage were legally recognized.(7)

    Exactly what lesbians and gay men hope to obtain from legal marriage is uncertain. Since public ceremonies of commitment are already so common, one might expect that when debating state-sanctioned marriage, they would focus on what law itself can accord that other institutions cannot. a range of legally protected benefits and legally imposed obligations. In fact, they do not. In the vigorous public discussion, few advocates address at any length the legal consequences of marriage. William Eskridge, for example, devotes only six of the 261 pages in his fine new book, The Case for Same-sex Marriage, to the legal consequences, and his, with one exception, is the longest discussion I can find.(8) Whatever the context of the debate, most speakers are transfixed by the symbolism of legal recognition. It is as if the social significance of the marriage ceremonies gay people already conduct today count for nothing @ as if, without the sanction of the state, those who marry have merely been playing dress-up.

    That the social meanings of state recognition draw so much attention is nonetheless understandable. In our country, as in most societies throughout the world, marriage is the single most significant communal ceremony of belonging. It marks not just a joining of two people, but a joining of families and an occasion for tribal celebration and solidarity. In a law-drenched country such as ours, permission for same-sex couples to marry under the law would signify the acceptance of lesbians and gay men as equal citizens more profoundly than any other nondiscrimination laws that might be adopted. Most proponents of same-sex marriage, within and outside gay and lesbian communities, want marriage first and foremost for this recognition.(9) Most conservative opponents oppose it for the same reason. Thus, the conservative legislators who have promoted the recent legislation in many states that reject same-sex marriage and the members of Congress who voted for the Defense of Marriage Act(10) seem motivated not by a view of the inappropriateness of extending particular legal entitlements to same-sex couples but by views about some "inherent" meaning of marriage and by views about the social unacceptability of gay people and gay relationships.

    Skeptics about marriage within the lesbian and gay communities also largely ignore the legal consequences of marriage. They focus instead on the negative meanings they attach to the institution itself. To many, marriage signifies hierarchy and dominance, subjugation and the loss of individual identity.11 To them, it marks a tombstone over the graves of countless generations of married couples. one stone reads "Herbert Smith," the other simply reads "Wife." And even if the legal institution of marriage has changed in the recent past, they resist the assimilation of queer couples into an oppressive heterosexual orthodoxy of ascribed roles and domesticity.(12)

    When skeptics about marriage within lesbian and gay communities do focus on the legal consequences of marriage - and they occasionally do - some express considerable misgivings. In the introduction to her collection of interviews with lesbians and gay men who have united in ceremonies of commitment, Suzanne Sherman writes with admiration of the couples she encountered, but also expresses doubts about marriage as a legal institution. "I don't believe that tax breaks and other benefits should be attached to marital status."(13) in her view, the subject of the law ought to be the individual, not the couple. Many of her interviewees seemed to agree. They treasured their partners, but expressed distrust of the state. If state laws permitted same-sex marriage, many said that they would marry to obtain the benefits now given to opposite-sex couples, but the tone of their comments sometimes suggested that the bounty that accrues to married people is undeserved or inappropriate.(14) They speak of it in much the same way that they might speak of the perks of the overpaid chief executive of a large corporation.

    Nancy Polikoff, a law professor and scholar who is critical of efforts by gay and lesbian advocates to pursue legalized marriage, views the benefits that attach to heterosexual marriage in much the same way. Of the economic benefits, she writes:

    For those who support lesbian and gay marriage because it would allow us access to the package of benefits now associated with heterosexual marriage ... advocating lesbian and gay marriage is an obvious choice. I do not share that vision. Advocating lesbian and gay marriage will detract from, even contradict, efforts to unhook economic benefits from marriage and make basic health care and other necessities available to all.(15)

    Polikoff alludes to health care as a specific example of a social good that she believes is inappropriately linked...

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