* Associate Professor of Law, University of Maine School of Law; B.A. Yale College, J.D., Harvard Law School. Thanks to the International Society of Family Law North American Regional Conference, the University of Maine School of Law Faculty Symposium Series, and the Freedom to Marry Conference at Harvard Law School for allowing me to present early drafts of this article, and to everyone who provided comments on those occasions. For research assistance, thanks to Tanya Floerchinger. For logistical assistance, thanks to Ruth Miner. For particularly helpful conversations, thanks to Lois Lupica and Thomas L. Shaffer. I appreciate the insights of Katharine Baker, Mary L. Bonauto, Orlando Delogu, Edward Godfrey, E.J. Graff, Dean Colleen Khoury, Michael Lang, Sive Neilan, Nancy Wanderer and Donald Zillman, who reviewed drafts. I am grateful for research support for this article provided by the University of Maine School of Law.
1 The boundaries of the category of communitarian scholars are far from clear. As Marsha Garrison notes, “while communitarian thinkers are a diverse group, they uniformly favor a deemphasis on abstract individual rights; they tend to emphasize the individual’s embeddedness in various communities of interest, such as the family.” Marsha Garrison, An Evaluation of Two Models of Parental Obligation, 86 Cal. L. Rev. 41, n.205 (1998). Glendon and Hafen have been characterized as communitarian. Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 Va. L. Rev. 1225, 1227 n.3 (1998) [hereinafter Scott, Relational Contract]. Elizabeth Scott notes that Carl E. Schneider’s article, The Channelling Function in Family Law, 20 Hofstra L. Rev. 495 (1992) [hereinafter Schneider, The Channelling Function], “suggests sympathy with at least some parts of the communitarian critique.” Elizabeth S. Scott, Rehabilitating Liberalism in Modern Divorce Law, 1994 Utah L. Rev. 687, 708 n.82. Some of Schneider’s later work, such as Carl E. Schneider, Marriage, Morals, and the Law: No-Fault Divorce and Moral Discourse, 1994 Utah L. Rev. 503 (1994) [hereinafter Schneider, Marriage and Morals], and Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev. 1803 (1985) [hereinafter, Schneider, Moral Discourse], even more strongly suggests sympathy with the communitarian critique. Milton Regan and Martha Minow also have been referred to as communitarian. See Scott, Relational Contract, supra, at 1227–28 nn.3 & 5.
2 Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989) [hereinafter Glendon, Transformation Of Family Law]; Mary Ann Glendon, Abortion and Divorce in Western Law (1987) [hereinafter Glendon, Abortion and Divorce].
3 Schneider, Marriage and Morals, supra note 1; Schneider, The Channelling Function, supra note 1; Schneider, Moral Discourse, supra note 1.
4 Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of Belonging, 1991 B.Y.U. L. Rev. 1 (199l) [hereinafter Hafen, Individualism and Autonomy]; Bruce C. Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy; Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463 (1983) [hereinafter Hafen, Constitutional Status].
5 Professor Glendon has extended this argument to other areas of law. See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991) [hereinafter RIGHTS TALK]. See generally Robert Bellah et al., Habits Of The Heart: Individualism and Commitment in American Life (1985). Martha Minow and others have been critical of family law’s focus on protecting autonomous individuals. Martha L. Minow, Forming Underneath Everything that Grows: Toward a History of Family Law, 1985 Wis. L. Rev. 819, 894 (1985)[hereinafter Minow, Forming Underneath]. Minow has also argued that family law should be more concerned than it has been recently with duties and obligations. Martha L. Minow, All in the Family and in all Families: Membership, Loving and Owing, 95 W. Va. L. Rev. 275, 304, 307 (1992–93) [hereinafter Minow, All in the Family]. Minow has also noted limitations of rights discourse, but has argued that rights claims actually imply relationships among interdependent community members. Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 268–69, 292–95 (1990); Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L. J. 1860, 1863–67 (1987). Milton C. Regan argues that family law should not be based on a model of individual private ordering but should “promote a substantive moral vision of commitment and responsibility.” Milton C. Regan, Jr., Family Law and the Pursuit of Intimacy 4 (1993).
6 Hafen, Individualism and Autonomy, supra note 4, at 32.
7 See infra Part III. For other scholarship making related arguments, see Carlos A. Ball, Moral Foundations of a Discourse on Same-Sex Marriage: Looking Beyond Political Liberalism, 85 GEO. L. J. 1871 (1997); Mary E. Becker, Women, Morality, and Sexual Orientation, 8 U.C.L.A. WOMEN’S L. J. 165 (1998) [hereinafter Becker, Women and Morality]; Chai R. Feldblum, A Progressive Moral Case for Same-Sex Marriage, 7 Temp. Pol. & Civ. Rts. L. Rev. 485 (1998); Linda S. McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond “Empty” Toleration to Toleration as Respect, 59 Ohio St. L. J. 19 (1998); Regan, supra note 5, at 119–22. This argument is separate from and in addition to the assertion that the federal Constitution or state constitutions do not allow states to forbid such marriages. An extensive body of scholarship exists on that topic. See e.g., William Eskridge, The Case For Same Sex Marriage: From Sexual Liberty to Civilized Commitment (1996); David A.J. Richards, Women, Gays, and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law, 411–57 (1998); Mark Strasser, Legally Wed: Same-Sex Marriage And The Constitution (1997); Jennifer Wriggins, Maine’s ‘Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages’: Questions of Constitutionality Under State and Federal Law, 50 Me. L. Rev. 345 (1998) [hereinafter Wriggins, Questions of Constitutionality].
8 See infra Parts I.A and B.
9 See infra Part II.A.
10 See infra Part II.B.
11 See infra Part III.A.
12 See infra Part III.A.
13 Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 Cardozo L. Rev. 1299, 1300 (1997) [hereinafter Christensen, Legal Ordering].
14 See infra Part III. In arguing that the “framework offered by marriage” should be available to lesbian and gay couples, I am not taking a position in the debates about whether to characterize marriage as a status or as a contract, whether to emphasize one aspect or the other, or whether these aspects are opposed. See, e.g., Regan, supra note 5, at 89–152; Scott, Relational Contract, supra note 1, at 1233–49; Katherine B. Silbaugh, Marriage Contracts and the Family Economy, 93 Nw. U. L. Rev. 65, 111–22 (1998) [hereinafter Silbaugh, Family Economy]. The defaults that marriage creates, however characterized, should be available to lesbian and gay male couples. See Christensen, Legal Ordering, supra note 13, at 1344–47. For further discussion of issues concerning marriage as a status or contract and the contractualization of marriage law, see infra notes 86–89, 241–46, and accompanying text.
15 See infra Part III.B.
16 See infra Part III.B.
17 See infra Part III.C.
18 See infra Part III.C.
19 See infra Part IV.A. The arguments discussed in Part IV are articulated in Lynn D. Wardle, Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage, 39 S. Tex. L. Rev. 735 (1998) [hereinafter Wardle, Efforts to Legitimate].
20 See infra Part IV.B.
21 See infra Part IV.C. For additional material countering arguments against same-gender marriage, see, for example, sources cited in note 7, supra; Mary Bonauto et al., The Freedom to Marry for Same-Sex Couples: The Opening Appellate Brief of Plaintiffs Stan Baker et al. in Baker et al. v. State of Vermont, 5 Mich. J. Gender & L. 409 (1999), Mary Bonauto et al., The Freedom to Marry for Same-Sex Couples: The Reply Brief of Plaintiffs Stan Baker et al. in Baker et al. v. State of Vermont, 6 Mich. J. Gender & L. 1 (1999); Andrew Koppelman, Is Marriage Inherently Heterosexual?, 42 Am. J. Juris. 51 (1997) [hereinafter Koppelman, Is Marriage Inherently Heterosexual?].
22 Dean Judith Areen notes in her preface to a family law casebook, “there is no consensus about the proper scope of the [family law] course.” Judith Areen, Cases and Materials on Family Law (3d. Ed. 1992). Areen also notes “the general lack of theory to employ in organizing the material.” Id.
23 Martha Minow notes that the three basic issues in family law are who is in a family, what benefits are obtained by being in a family and what obligations are incurred by being in a family. See Minow, All in the Family, supra note 5, at 275–76.
24 Hafen, Constitutional Status, supra note 4, at 489.
25 See Christensen, Legal Ordering, supra note 13, at 1306.
26 See Schneider, The Channelling Function, supra note 1, at 497. The channelling function has proven a useful concept in applying economic theories to families. Ann Laquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 Wm. & Mary L. Rev. 989, 1048, 1050 (1995).
27 Schneider, The Channelling Function, supra note 1, at 502–03.
28 Id. at 495.
29 Id. at 497.
30 Id. at 497.
31 Id.
32 Schneider, The Channelling Function, supra note 1, at 497..
33 See infra Part I.B.; see, e.g., Glendon, Abortion and Divorce, supra note 2, at 8–9; Milton C. Regan, Jr., How Does Law Matter? 1 GREEN BAG 2d 265, 270–75 (1998); Carol Weisbrod, Essay on the Expressive Functions of Family Law, 22 U.C. Davis L. Rev. 991, 995–99 (1989).
34 Schneider, The Channelling Function, supra note 1, at 498. While part of the point of the expressive function is, as Schneider says, to alter behavior, he acknowledges that it is extremely difficult to draw clear conclusions from data in the family law area and thus determining the impact of any particular program or set of laws is often impossible. See id. at 521–22. For further discussion of the expressive function, see infra Part I.B.
35 See Schneider, The Channelling Function, supra note 1, at 498
36 See id. at 505–07.
37 See id. at 502.
38 See id. at 503–05.
39 See id. at 498. Schneider says he is “wryly” calling this aspect an efficiency component. See Schneider, The Channelling Function, supra note 1, at 508–09.
40 See id. at 509. For instance, he uses the example that a person wearing a wedding ring sends a message that that person is not sexually available. See id.
41 See id. at 499, 505–07.
42 See id. at 499, 501–12.
43 See Schneider, The Channelling Function, supra note 1, at 510. In such situations there is often “discomfort and even distress” about the “unclear and uncomfortable” relationships between stepparents and stepchildren. Id. at 510 (citations omitted).
44 Id. at 521.
45 557 P.2d 106 (Cal. 1976).
46 See Schneider, The Channelling Function, supra note 1, at 514, 521. Glendon makes similar observations. See Glendon, Transformation of Family Law, supra note 2, at 279–80.
47 Schneider, The Channelling Function, supra note 1, at 529.
48 See id. at 515–16, 521–22. Schneider wrote “‘all schemes of statutory regulation are ultimately based on unprovable assumptions about human nature.’” Id. at 525, quoting Schneider, State-Interest Analysis in Fourteenth Amendment “Privacy” Law: An Essay on the Constitutionalization of Social Issues, 51 Law & Contemp. Probs. 79, 103 (1988).
49 See Glendon, Abortion and Divorce, supra note 2, at 8. See generally James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (1985); Regan, supra note 5, at 176–84; Regan, supra note 33, at 269–74.
50 Glendon, Abortion and Divorce, supra note 2, at 8.
51 Id.
52 Id. at 9, quoting James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684, 691 (1985).
53 Id.
54 Glendon, Transformation Of Family Law, supra note 2, at 4.
55 See generally E.J. Graff, What is Marriage for? (1999); Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America (1985); Lawrence Stone, Road to Divorce: England 1530–1987 (1990).
56 Glendon, Transformation of Family Law, supra note 2, at 4.
57 See id. at 292–93; ESKRIDGE, supra note 7, at 96–98, 129–30. See generally Graff, supra note 55.
58 See Glendon, Transformation of Family Law, supra note 2, at 2–3, 103; Hafen, Individualism and Autonomy, supra note 4, at 6; Schneider, The Channelling Function, supra note 1, at 512–19.
59 See infra Parts II.A and II.B.
60 See infra Part II.C and II.D.
61 Others have raised somewhat similar concerns. See, e.g., Minow, Forming Underneath, supra note 5, at 893-94 (noting that family law’s focus on autonomous individuals and their rights is reductionistic and stating that family law should nurture relationships); Regan, supra note 5, at 56–67 (noting that modern family law is focused on the individual and on emotional fulfillment which may result in more gratifying emotional relationships but make families less stable).
62 Glendon, Transformation of Family Law, supra note 2, at 297. “Intersubjective” is defined as “involving or occurring between separate conscious minds.” Webster’s New Collegiate Dictionary (1981). The noun form is intersubjectivity. See id.
63 Glendon, Abortion and Divorce, supra note 2, at 108.
64 Id. at 105.
65 Id. at 106. Glendon argues that the law should develop clear principles for at least two different types of divorces, one for the short-term marriage where there are no children and the spouses (implicitly) are not economically dependent or interdependent. See id. A different set of principles should be applied for the largest single category of divorce; those situations where there are small children. See id. at 102. The majority of divorces involve families with small children. See GLENDON, ABORTION AND DIVORCE, supra note 2, at 102. Children’s needs should always be placed above adults’ needs, and divorcing parents’ “contracts” concerning children’s care should receive court scrutiny. See id.
66 Id. at 93, 99–103, 109–11.
67 Schneider, Marriage and Morals, supra note 1, at 525.
68 Id. at 526.
69 Id. at 533.
70 See id.
71 See Hafen, Individualism and Autonomy, supra note 4, at 3. See generally Hafen, Constitutional Status, supra note 4.
72 Hafen, Individualism and Autonomy, supra note 4, at 23. Hafen uses sociologist Pitirim Sorokin’s typology of personal relationships: familistic, contractual and compulsory. See id. at 23. “Familistic relationships involve an intermingled and organic unity in which shared commitments of mutual attachment transcend self-interest. Such interaction derives from an unlimited personal commitment, not merely to another person, but to the good of the relationship or the family entity as a larger order.” Id. at 23–24. Contractual relationships are very different:
[Such relationships] by definition are always limited in scope and intensity. Parties enter a contractual relationship primarily because of self-interest; therefore, their commitment is measured by the extent to which the relationship assures them of profit, pleasure, or service. . . . Neither party to a contract may assume that the other acts in constant good faith, because, reflecting free market assumptions, both parties are expected to interpret the limits of their commitment according to self-interest.
Id. at 24. Third, compulsory relationships “are exclusively antagonistic: master and slave, conqueror and captive,” although the individual with the power in the relationship may deploy ideology masking the power relationship. Id. at 24–25.
73 See Hafen, Individualism and Autonomy, supra note 4, at 25-27. “No-fault” divorce is an example of this shift, according to him. See id. For further discussion of the shift to contract, see infra notes 86–89.
74 See Hafen, Individualism and Autonomy, supra note 4, at 24-25.
75 Id. at 27.
76 See id.
77 Id. at 37.
78 See id. at 32.
79 Hafen, Individualism and Autonomy, supra note 4, at 31.
80 Id. at 39–41.
81 Hafen, Constitutional Status, supra note 4, at 485–86.
82 Id. at 486. Milton Regan takes a similar position. See Regan, supra note 5, at 122–28 (noting that unmarried unions tend to be less stable than married unions and arguing for a clear distinction between married and unmarried status). Mary Becker also contrasts the benefits of marriage with cohabitation. See Mary E. Becker, Family Law in the Secular State and Restrictions on Same-Sex Marriage: Two Are Better than One, 2000 U. ILL. L. REV. (forthcoming 2000) [hereinafter Becker, Two Are Better] (noting the cohabiting couples’ relationships tend to be less stable and satisfying to their members than relationships between members of married couples).
83 Hafen, Constitutional Status, supra note 4, at 490.
84 Id. at 483.
85 Hafen, Individualism and Autonomy, supra note 4, at 42.
86 Id. at 25–26, 38; Schneider, Marriage and Morals, supra note 1, at 532–36. Various scholars have voiced concerns about the increased contractualization of family law. See, e.g., Regan, supra note 5, at 2–3, 34–42; Minow, Redefining Families: Who’s In and Who’s Out, 62 U. Col. L. Rev. 269, 282–83 (1991) [hereinafter Minow, Redefining Families]. Craig Christensen notes the difficulty of applying traditional contract principles to intimate relationships. See Christensen, Legal Ordering, supra note 13, at 1327–28. He also concludes that increased use of contracts by same-gender couples will be positive but will not be an adequate substitute for “marriage as a comprehensive arbiter of legally enforceable rights.” Id. at 1347. Implicit in his idea, as well as in Regan’s, Hafen’s, and others’, is the idea that marriage is something more than an individually negotiated contract; Regan and others refer to this as a status. There is debate about many aspects of the contractualization of family law. One scholar recently proposed incorporating commercial contract principles into marriage law through a premarital security agreement, pursuant to which the primary homemaker gets a security interest in the primary wage-earner’s post-divorce income. See Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women’s Work Through Premarital Security Agreements, 77 Tex. L. Rev. 17 (1998) [hereinafter Ertman, Commercializing Marriage]. Another scholar has argued that the status/contract distinction is simplistic, and that selective enforcement of premarital agreements, pursuant to which financial terms are enforced while non-monetary terms are not enforced, disadvantages women. See Silbaugh, Family Economy, supra note 14. She further argues that premarital agreements should be unenforceable. See id. Still another approach is to challenge the idea that contractualization necessarily is related to atomism and lack of commitment. Robert and Elizabeth Scott argue that “contracts can serve very well as a basis for an enduring, committed relationship. Only two modest assumptions are required: that many individuals entering marriage are motivated to undertake a long-term commitment and wish to secure reciprocal commitments from their partners, and that both parties share the goal of a lasting marriage.” Scott, Relational Contract, supra note 1, at 1246. They argue that the core meaning of contract is commitment. See id. at 1246. Even the writers who seem to favor increased “contractualization” of family law, recognize a need for broad principles or defaults such as those created by marriage rules. See Scott, Relational Contract, supra note 1, at 1320–29; Ertman, Commercializing Marriage, supra at 55, 59–60 n.159.
87 He writes that “when commitments among spouses and children are unqualified, we learn and grow to an extent not possible in self-oriented, limited relationships of contract.” Hafen, Individualism and Autonomy, supra note 4, at 39.
88 Glendon, Transformation of Family Law, supra note 2, at 139. She notes that while marriage contract proponents initially saw such contracts as “the ideal way to preserve the neutrality of the state, promote sex equality and respect individual liberty,” in reality the issues are not so simple in view of power dynamics and issues about what should and should not be subject to contract. Id. For expression of similar concerns regarding applying traditional contract principles to intimate relationships, see Christensen, Legal Ordering, supra note 13, at 1327–28.
89 Schneider, Marriage and Morals, supra note 1, at 532.
90 See generally Martha Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (1995); Minow, Forming Underneath, supra note 5, at 894; Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 1–3 (1988).
91 See infra notes 127 and 257 for additional scholarship on these points.
92 See Glendon, Transformation of Family Law, supra note 2, at 306–07.
93 See infra Parts III and IV.
94 This trend is only partial regarding children. See Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child, 6 Harv. Int’l. L.J. 449, 451–57 (1996); Martha Minow, Whatever Happened to Children’s Rights, 80 Minn. L. Rev. 267 (1995).
95 Glendon, Transformation of Family Law, supra note 2, at 188–89.
96 It is not clear precisely what role nonfault or no-fault divorce played in causing the heightened divorce rate from the seventies to the nineties. Naomi Cahn terms no-fault divorce a “contributing factor” but also points out that the divorce rate began rising well before no-fault was introduced and that many factors have contributed to it. See Naomi R. Cahn, Review Essay: The Moral Complexities of Family Law, 50 Stan. L. Rev. 225, 249–50 (1997). No-fault divorce and its consequences have spawned a proliferation of literature; for a recent discussion, see Katherine T. Bartlett, Saving the Family from the Reformers, 31 U.C. Davis L. Rev. 809 (1998).
97 See Silbaugh, Family Economy, supra note 14; Ertman, Commercializing Marriage, supra note 86, at 60 n.159.
98 See, e.g., Hakkila v. Hakkila, 812 P.2d 1320, 1326–27 (N.M. 1991) (finding action for intentional infliction of emotional distress not barred in interspousal context); McCoy v. Cooke, 419 N.W.2d 44, 46 (Mich. Ct. App. 1988) (reversing trial court’s dismissal of wife’s action for assault, battery, and intentional infliction of emotional distress for conduct of former husband during marriage); Courtney v. Courtney, 413 S.E.2d 418, 420 (W. Va. 1991) (same); Stuart v. Stuart, 421 N.W.2d 505 (Wis. 1988) (same).
99 See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801 (1993).
100 See Glendon, Abortion and Divorce, supra note 2, at 141–42; Glendon, Transformation of Family Law, supra note 2, at 312–13; Schneider, Marriage and Morals, supra note 1, at 556–57, 583.
101 See Hafen, Individualism and Autonomy, supra note 4, at 34.
102 See infra notes 108–20 and accompanying text.
103 Family law in the United States, including marriage law, is civil law rather then religious law. Lawrence M. Friedman states “[i]n England, ecclesiastical courts had jurisdiction over marriage and divorce, and the church had an important role in family law. The United States had no such court, and, after the early nineteenth century, no established churches. Family law was thoroughly secular in the United States.” Lawrence M. Friedman, A History Of American Law 202 (1985).
104 See infra notes 108–20 and accompanying text. Glendon seems to conclude that this is not so. She writes:
[t]he trend toward withdrawal of regulation of the ongoing marriage in the United States is reinforced by the advance of the equality principle. While equality theoretically can be implemented by extending legal rights and duties connected with marriage to whichever sex previously lacked them, the equality principle more often, in combination with other factors, results in diminished rights and duties for both, draining marriage of much of its legal content [and] promoting the idea of marriage as an association of separate individuals. . . .
Glendon, Transformation of Family Law, supra note 2, at 95. Despite Glendon’s assertion, it seems that generally, duties and rights connected with marriage have been extended to whichever sex previously lacked them, as discussed infra at notes 108–120 and accompanying text. It is not clear exactly what Glendon is referring to when she discusses the “trend towards withdrawal of regulation of the ongoing marriage,” since earlier she discussed the longstanding “principle” and practice of “noninterference in private life” that was dominant from the time of John Stewart Mill in common law systems. Id. at 86. She contrasts the continental systems which leave open possible judicial involvement in ongoing marriages, with the United States’ “traditional approach of nonintervention.” Id. at 94–95. Thus, it is not clear how the advance of the equality principle reinforces the trend toward withdrawal of regulation of the ongoing marriage. While it may be the case that the “other factors” she alludes to result in diminished rights and duties, the legal reforms in marriage seem generally to have extended duties, not contracted them.
105 See Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601–2615 (1994). The Act requires certain employers to give qualified employees time off to care for a sick spouse, child or parent. Id. Various states also have family leave acts. See, e.g., Cal. Gov’t Code § 12945.2 (West 2000).
106 See Glendon, Abortion and Divorce, supra note 2, at 9.
107 It can be difficult to determine whether various developments further the trend toward atomization or not. For example, the Louisiana Covenant Marriage Law, La. Rev. Stat. Ann. § 9:307 (West 1997), heralded by some as a return to an earlier era when couples were more unified, actually can be seen as furthering the individualization of family law because it gives individuals and couples the opportunity to choose which set of divorce laws will apply to them should they separate.
108 See Reva Siegel, The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860–1930, 82 Geo. L. J. 2127, 2194 (1994), citing 3 William Blackstone, Commentaries on the Laws of England 142 [hereinafter Siegel, Modernization]; see, e.g., Baird v. Cincinnati, New Orleans & Tex. Pac. R.R. Co., 368 S.W.2d 172 (Ky. 1963) (holding wife can not maintain action to recover for loss of husband’s consortium although husband can maintain action to recover for loss of wife’s consortium).
109 See Paul Benjamin Linton, State Equal Rights Amendments: Making a Difference or Making a Statement?, 70 Temp. L. Rev. 907, 932 (1997) (noting that state courts have consistently held that loss of consortium must be extended to women to avoid violating equal rights guarantees); see, e.g., Rodriguez v. Bethlehem Steel, 525 P.2d 669 (Cal. 1974) (holding wife has loss of consortium action against third party who injured husband); Me. Rev. Stat. Ann. tit. 14, § 302 (West 1999) (either spouse may sue for loss of consortium); Ohio Rev. Code Ann. § 2125.02(B) (Anderson 1999) (in wrongful death actions, surviving spouse can sue for loss of consortium).
110 See Robert C. Brown, The Duty of the Husband to Support the Wife, 18 Va. L. Rev. 823 (1932), reprinted in .Selected Essays on Family Law 810, 822 (American Association of Law Schools eds., 1950); Blanche Crozier, Marital Support, 15 B.U. L. Rev. (1935), reprinted in Selected Essays on Family Law 831 (American Association of Law Schools eds., 1950); see, e.g., Graham v. Graham, 33 F. Supp. 936 (1940) (finding husband and wife can not contract to relieve husband of duty to support wife; contract giving wife obligation to support husband held void). In 1935, Blanche Crozier discussed the possibility of extending the duty of support to the wife, arguing that “[i]t is not possible to extend the duty of support to the wife so long as she is not the owner of her own means of support, her labor . . . . The husband’s ownership of the wife’s labor is the foundation of his duty of support; and one is as incapable of being made reciprocal as the other.” Crozier, Marital Support, supra, at 859.
111 Brown, supra note 110, at 822; see also Steinfield v. Girrard, 68 A. 630 (1907) (finding wife who deserts husband without his fault forfeits right to support from him). The duty of support and companionship was generally not enforceable as long as the marriage was intact. See, e.g., McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953) (finding wife’s claim that husband should be ordered to provide better living situation dismissed since parties were living together). This is still the case. See Margaret M. Mahoney, Economic Sharing During Marriage: Equal Protection, Spousal Support and the Doctrine of Necessities, 22 J. Fam. L. 221, 229 (1983–1984).
112 See Silbaugh, Family Economy, supra note 14, at 84. See generally Mahoney, supra note 111.
113 See, e.g., Del. Code Ann. tit. 13, § 502 (1999) (spouse has duty to support spouse), Mich. Comp. Laws § 401.5 (1999) (husband or wife must provide support); Mont. Code Ann. § 40–2–102 (1997) (wife and husband have duty to support one another); N.Y. Fam. Ct. Act § 412 (McKinney 1998) (married person has duty to support spouse); Ohio Rev. Code Ann. § 3103.03 (West 1999) (married person must support spouse), Okla. St. Ann. tit. 43, § 202 (West 2000) (wife must support husband and husband must support wife).
114 See, e.g., Conn. Gen. Stat. Ann. § 46B–37 (West 1995) (spouse who abandons spouse without cause is liable for support of abandoned spouse); Me. Rev. Stat. Ann. tit. 19-A, §§ 1504, 1505 (West 1998) (person has duty to support spouse and children regardless of whether person lives with spouse or children). But see Cal. Fam. Code § 4302 (West 2000) (person not liable for support of spouse when the person is living separate from the spouse by agreement unless support is stipulated in the agreement).
115 The duty, in the past and currently, generally is only enforced by indirect means such as criminal law, the necessities doctrine or family expense statutes which allow creditors to seek recovery from one spouse for goods that the other spouse purchased. See Mahoney, supra note 111, at 229–45.
116 See Brown, supra note 110, at 814, citing Kirk v. Chinstrand, 88 N.W. 422 (Minn. 1901) (finding where husband refuses to permit wife to live with him, he may not dictate where she may live).
117 La. Civ. Code Ann. art. 120 (West 1999), quoted in Crosby v. Crosby, 434 So.2d 162, 163 (La. 1983).
118 See Crosby, 434 So.2d at 163, appeal dismissed per stipulation, 442 So.2d 1248 (La. 1983). This case took place against a backdrop of fault-based divorce laws. In order to obtain alimony, Mrs. Crosby had to show that she was free from fault. The only evidence of her fault was “her refusal to follow Mr. Crosby when he changed domiciles.” Id. at 164. The refusal to follow violated La. Civ. Code Ann. art. 120 (West 1999), quoted in the text above.
119 See id.
120 See Mahoney, supra note 111, at 229–45.
121 Milton Regan states, “spouses . . . don’t simply help each other construct separate individual identities . . . . [T]hey participate in the creation of a shared . . . identity.” Regan, supra note 5, at 94.
122 Robin West, Universalism, Liberal Theory, and the Problem of Gay Marriage, 25 Fla. St. U. L. Rev. 705, 729 (1998) [hereinafter West, Universalism].
123 See Linda K. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship (1998) (discussing how in the United States married women’s obligations to their families and husbands historically have substituted for their obligations to the state, and how this has changed only gradually); Siegel, Modernization, supra note 108, at 2194. Thus, even the idea of some women having autonomy is relatively new.
124 Katharine K. Baker, Property Rules Meet Feminist Needs: Respecting Autonomy by Valuing Connection, 59 Ohio St. L. J. 1523, 1525 (1998).
125 Id. at 1530.
126 See Siegel, Modernization, supra note 108; Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850–1880, 103 YALE L.J. 1073 (1994) [hereinafter Siegel, Home as Work].
127 See, e.g., Becker, Women and Morality, supra note 7 (arguing that current marriage rules exacerbate women’s subordinate status); Ertman, Commercializing Marriage, supra note 86, at 17–22, 31 (arguing that devaluation of women’s household labor operates to the detriment of homemakers and all women); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1, 6 (1996) [hereinafter Silbaugh, Labor into Love] (arguing that treatment of women’s unpaid household labor disadvantages women).
128 See Baker, supra note 124, at 1549–58. This framework is extremely broad-brush, and applies mainly to white women and men in the United States, and not to all of them, since issues of class, region, religion and so forth complicate matters. It can not be plausibly argued that black men’s or black women’s autonomy was encouraged in the United States under slavery. In view of racist legal structures that have persisted throughout most of the twentieth century, it is difficult to claim that black men’s or black women’s autonomy has at any time been widely encouraged in the same way that some white men’s autonomy has been encouraged. See, e.g., Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L. Rev. 529 (1999) (stating that a strong sense of individuality has been a punishable offense for black Americans for most of the history of the United States). Gender issues for black women are often very different from gender issues for white women, in family law as in other areas. See, e.g., Twila L. Perry, Alimony: Race, Privilege, and Dependency in the Search for Theory, 82 Geo. L J. 2481 (1994) (noting married black women may be less economically dependent within marriage than white women and that alimony theory may rest on assumptions more applicable on average to white women than to black women); Jennifer Wriggins, Note: Rape, Racism, and the Law, 6 Harv. Women’s L.J. 103 (1983) (rape laws and prosecutions historically ignored all rape of black women while taking seriously some rape charges by white women, as long as those charges were against black men).
129 Baker, supra note 124, at 1556.
130 See id. at 1556. See generally Bartlett, Saving the Family from the Reformers, supra note 96.
131 See Schneider, Marriage and Morals, supra note 1, at 523.
132 He notes that many family law reforms have been made in order “to change gender relations” in American society. See id. at 523. Hafen acknowledges the trend toward gender equality, see Constitutional Status, supra note 4, at 490, and notes the “widespread evidence of gender inequality in traditional American culture.” Hafen, Individualism and Autonomy, supra note 4, at 38.
133 See generally Siegel, Modernization, supra note 108, at 2131 (arguing that wives in the industrial era and in the present were economically disempowered by marriage and impoverished by divorce); Siegel, Home as Work, supra note 126 (reviewing efforts to reform doctrines that gave husband title over property notwithstanding wives’ labor contributions in pre-Civil War period); supra notes 108–09, 124–27 and accompanying text.
134 See supra notes 108–20 and accompanying text. For a similar argument extending beyond marriage to family law generally, see generally Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96.
135 See supra notes 95–97 and accompanying text. Of course, not all loosening of bonds between people is negative. For example, few would argue for a return to the days when domestic violence was protected by the mantle of family privacy and the husband-wife bond. Moreover, it may be that individual autonomy can be a foundation for genuine community. Katherine Bartlett explicitly makes this link, claiming that “robust notions of the community and family depend” on “diversity and notions of individual freedom.” Bartlett, Saving the Family from the Reformers, supra note 96, at 818.
136 83 Mich. L. Rev. 1803 (1985).
137 Id. at 1809. He states that there has been “a diminution of the law’s discourse in moral terms about the relations between family members, and the transfer of many moral decisions from the law to the people the law once regulated.” Id. at 1807–08.
138 See id. at 1810–11.
139 See id. at 1811.
140 See Schneider, Moral Discourse and the Transformation of Family Law, supra note 136, at 1814.
141 See id. at 1814–16.
142 See id. The factors to which he attributes the changes are the legal tradition of noninterference in family matters, the ideology of liberal individualism, American society’s changing moral beliefs, and the rise of “psychologic man.” See id. at 1808–09.
143 Schneider, Marriage and Morals, supra note 1, at 519. Schneider notes that for many, the term ‘morality’ has come to have a narrow meaning, referring to traditional sexual morality. See id. at 537–38. He notes that:
the term “moral” has in some milieux taken on a narrow—and derogatory—meaning. “Morality” means “traditional morality” which means sexual morality. The relegation of morals to sexual morals does little to advance the dignity of moral thought, for sexual morals have come to connote a narrow, rigid, prudish, restrictive, and repressive regime of outdated ideas hypocritically stated and heartlessly imposed . . . . In short, moral has come to mean moralistic.
Id.
144 See id. at 543. In his article, Marriage and Morals, supra note 1, Schneider uses the example of the reaction of his family law students to a hypothetical of a man wanting to leave his wife of many years for his young secretary to make various points. These points include the idea that students view marriage as primarily a vehicle for self-fulfillment, since few articulated any moral objections to the man leaving his marriage, and few articulated any moral reasons why he should continue to support his spouse after marriage. See id. at 509–17. By contrast, in teaching family law at University of Maine School of Law, I have found students articulate the opposite thoughts; that after a certain time a relationship (married or unmarried, gay or straight) carries with it an obligation to stay, divide property not according to title, and/or to provide ongoing support of some kind.
145 Glendon, Transformation of Family Law, supra note 2, at 14.
146 Id. at 297.
147 See Hafen, Individualism and Autonomy, supra note 4, at 1–3.
148 Id. at 5.
149 Margaret Brinig notes that “much of the communitarian literature . . . sets a mood rather than providing an agenda.” Margaret F. Brinig, Status, Contract and Covenant, 79 Cornell L. Rev. 1573, 1573 (1994) (reviewing Milton Regan, Family Law and the Pursuit of Intimacy (1993)).
150 See, e.g., Hafen, Individualism and Autonomy, supra note 4, at 1–18. See generally Schneider, Marriage and Morals, supra note 1; Glendon, Abortion and Divorce, supra note 2, at 112–42.
151 Hafen, Individualism and Autonomy, supra note 4, at 5. Compare In re Black, 283 P.2d 887 (Utah 1955) (upholding termination of parental rights of polygamous parents because of immorality of polygamous environment for children), with Sanderson v. Tryon, 739 P.2d 623 (Utah 1987) (finding that a parent’s practicing polygamy, standing alone, is insufficient to support a custody award to the non-polygamous parent).
152 The broad question of the relationship between law and morality is beyond the scope of this article. Very influential works include Patrick Devlin, The Enforcement of Morals (1965) (claiming that law should be used to uphold society’s moral standards in the context of criminal laws forbidding homosexual sex); Herbert A. Hart, Liberty and Morality (1963) (claiming that it is not justified to use criminal law to outlaw conduct simply because that conduct is immoral according to common belief). For a recent argument that although law and morality overlap, moral theory has nothing to offer jurisprudence, see Richard A. Posner, The Problematics of Moral and Legal Theory 91–182 (1999).
153 See Bartlett, Saving the Family from the Reformers, supra note 96, at 816; Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 238; Silbaugh, Family Economy, supra note 14, at 67 n.1.
154 Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 238.
155 Id. at 244–45. Cahn notes that the decline of moral discourse and concerns over the increased individual focus of family law raise troubling questions and that issues about divorce and children should cause concern. See id.
156 Id. at 245.
157 Id.
158 Silbaugh, Family Economy, supra note 14, at n. 1. Silbaugh’s article, for example, explicitly “privileges equality . . . over other values, including liberty.”
159 Lee Teitelbaum, Correspondence—Moral Discourse and Family Law, 84 Mich. L. Rev. 430, 431 (1985).
160 Id. at 431.
161 Id. at 441. He notes that a “revised teleological view, directed to the functions and characteristics we now value in [family] relationships, may provide one way of thinking about these questions.” Id.
162 Regan, supra note 5, at 4.
163 Minow, All in the Family, supra note 5, at 306.
164 Id. at 325–32.
165 Minow, Redefining Families, supra note 86, at 282. Illustrating this principle, she writes:
[I]f someone claims family membership and the benefits that go along with it, that person may also be said to consent to and accept the obligations that attach to family roles. In other words, let us be welcoming toward those who are willing to take on family obligations, but serious in enforcing the expectation that those obligations will in fact be fulfilled.
Minow, All in the Family, supra note 5, at 307.
166 Bartlett, Saving the Family from the Reformers, supra note 96, at 843.
167 Id. at 816.
168 Id.
169 Id.
170 See id. at 819–43.
171 See supra notes 155–170 and accompanying text.
172 See Craig W. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a “Simulacrum of Marriage,” 66 Fordham L. Rev. 1699, 1726–27, 1729 (1998) [hereinafter Christensen, If Not Marriage]; David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447, 449 (1996). For example, in one study, 25% of the 560 gay male couples studied and 14% of the 706 lesbian couples studied had lived together for ten or more years. See A. Steve Bryand & Demian, Relationship Characteristics of Gay and Lesbian Couples: Findings from a National Survey <demian@buddybuddy.com> (an academic presentation of key findings from this survey also appears in 1(2) J. Of Gay & Lesbian Soc. Servs. (1994)); see also Lawrence A. Kurdek, Lesbian and Gay Couples in Lesbian, Gay, And Bisexual Identities Over The Lifespan: Psychological Perspectives 243, 243 (Anthony R. D’Augelli & Charlotte J. Patterson eds., 1995) (noting survey results that between 45% and 80% of lesbians and between 40% and 60% of gay men are currently involved in a romantic relationship). Also, “partners in same sex relationships score high on scales designed to measure attachment, caring and intimacy, with scores indistinguishable from heterosexual couples.” Regan, supra note 5, at 120.
173 See Eskridge, supra note 7, at 1–4; Chambers, supra note 172, at 450 n.7; Christensen, If Not Marriage, supra note 172, at 1726 n.162–63.. Not all lesbians and gay men see marriage as an ideal model and some define family in different ways. See Christensen, Legal Ordering, supra note 13, at 1304; see, e.g., Darren L. Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561, 591–601 (1997) (arguing that securing legal marriage for gay male and lesbian couples is a questionable goal).
174 Mary Louise Fellows et al., Committed Partners and Inheritance: An Empirical Study, 16 Law & Ineq. 1, 2 (1998).
175 See, e.g., Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) (stating that marriage by same-gender couples is not marriage).
176 See Brause v. Bureau of Vital Stats., No. 3AN–95–0562 CI, 1998 WL 88743 (Alaska Super. Ct. Feb. 27, 1998) (holding that because the right to choose one’s life partner is fundamental, a ban on marriage by couples of the same gender must be justified by a compelling state interest in order to be constitutional under the state constitution); Baehr v. Miike, Civ. No. 91–1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), rev’d and remanded, 994 P.2d 566 (Haw. Dec. 9, 1999) (Hawaii trial judge holds state can not forbid marriage by same-gender couples). In earlier proceedings in the same case, a plurality of the Hawaii Supreme Court had held that the state’s ban on marriage by same-gender couples had to be justified by a compelling state interest in order to be constitutional. See Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), modified by 852 P.2d 74 (Haw. 1993). In November 1998, Alaska voters amended the state constitution to define marriage as between a man and a woman only. See Carey Goldberg, Vermont Supreme Court Takes Up Gay Marriage, Nov. 19, 1998, N.Y.T. Abstracts 20, 1998 WL 22333334. In November 1998, Hawaii voters passed a constitutional amendment opposing the trial court’s decision. See id.
177 Baker v. Vermont, 1999 WL 1211709, at *20 (Dec. 20, 1999).
178 See Appendix: State Anti Same-Sex Marriage Statutes, 16 Quinnipiac L. Rev. 134 (1996). Also, although marriage is an area traditionally reserved to the states, Congress in 1997 passed the Defense of Marriage Act, Pub. L. No. 104–199, 110 Stat. 2419, codified at 1 U.S.C. § 728, 28 U.S.C. § 1738C which for the first time created a federal definition of marriage. Some of the states’ anti-same-gender marriage statutes have been used as authority to deny other types of connections between gay couples. For example, Arizona’s ban was used by the State Department of Corrections to justify forbidding any gay prisoner from holding hands with, hugging or kissing his or her partner at the beginning or end of a prison visit, although heterosexual couples were allowed such physical contact. See infra notes 207–12 and accompanying text. Pennsylvania’s law was authority for a court’s conclusion that two women could not adopt the biological child born to one of them. In re Adoption of R.B.F. and R.C.F. (Ct. of Common Pleas of Lancaster County, Pa. Oct. 22, 1998) (order dismissing adoption petition with prejudice).
179 For arguments that such statutes are unconstitutional, see sources cited at supra note 7; see also Samuel A. Marcosson, Romer and the Limits of Legitimacy: Stripping Opponents of Gay and Lesbian Rights of their “First Line of Defense” in the Same-Sex Marriage Fight, 24 J. Contemp. L. 217 (1998).
180 In arguing that marriage by same-gender couples be allowed, I am not arguing that such marriage will solve all or almost all problems faced by gay men and lesbians. As Darren Hutchinson has pointed out, for black and Latino lesbians and gay men, marriage may not make much, or any, difference. See Hutchinson, supra note 173, at 591. Hutchinson argues: “Because most gays and lesbians of color remain invisible and marginalized within the larger gay and lesbian community, it is extremely unlikely that a marriage license will close much of the gap between them and the center of a heterosexual society that is stratified by race, class, gender, and sexuality.” Id. at 591. Accepting these assertions, however, does not make the denial of marriage to same-gender couples acceptable. Hutchinson also points out that “substantial sociological, historical, and anthropological research demonstrates that African-American blacks, and other non-white cultures place tremendous importance on ‘extended families,’ rather than rigid nuclear bodies, as a means of social organization and child-rearing. These patterns result from economic necessity and cultural practice.” Id. at 592. Assuming that this expansive generalization is supported, it is clear that in the United States’ legal system today, marriage nonetheless plays quite an important role. See Glendon, Transformation of Family Law, supra note 2, at 293 (noting that law in the United States remains quite marriage-centered although less so than in the past). The exclusion from it is thus also significant. Hutchinson further writes, “if gay marriage does not challenge racial, class, and gender inequality, then we should—in light of the ‘multilayered and synergistic’ nature of sexual subordination—continue to question its high priority and even legitimacy, as an instrument of gay and lesbian liberation.” Hutchinson, supra note 173, at 601. As discussed infra, marriage by same-gender couples may challenge gender inequality. See infra notes 308, 315–16 and accompanying text. I agree that marriage by same-gender couples does not, in and of itself, challenge class or racial inequality. Few legal reforms challenge all these forms of inequality simultaneously, but that does not mean none should be pursued. Access to marriage nonetheless is important, despite the acknowledgment that it is not a panacea for inequality of various kinds, for several reasons including the following: First, marriage recognizes important connections between people. As Robin West says, “marriage just is, through and through, anti-individualistic. That is precisely its moral strength, and to no small measure the source of its immense appeal.” West, Universalism, supra note 122, at 729. Second, the exclusion has negative practical consequences for many gay men and lesbians whatever their race or class. For example, the Family and Medical Leave Act does not require employers to provide leave so that an employee can care for his or her partner, only for a spouse or child. See infra note 241 and accompanying text. Third, the exclusion tells false stories about gay male and lesbian couples in committed relationships. Fourth, it stigmatizes all gay men and lesbians. This is not to claim that there are no more severe forms of stigma, or that all gay men and lesbians face only that stigma. Of course, racism may be a more severe form of stigma for African-American gay men and lesbians than the exclusion from marriage. Last, the exclusion is a denial of formal equality.
181 Glendon, Abortion and Divorce, supra note 2, at 9.
182 The exclusion from marriage is an important exclusion. Although the legal significance of marriage has diminished, see Mary Ann Glendon, Marriage and the State: The Withering Away of Marriage, 62 Va. L. Rev. 663, 681 (1976), our law remains quite marriage-centered. See GLENDON, TRANSFORMATION OF FAMILY LAW, supra note 2, at 293-94.
183 Marriage has great practical significance and also has symbolic significance. See Christensen, If Not Marriage, supra note 172, at 1746, 1783; Chambers, What if?, supra note 172, at 449. Marriage law involves a panoply of legal protections and burdens. See generally Chambers, supra note 172. A federal study by the General Accounting Office found 1049 federal statutes under which marital or spousal status affects an entitlement, right or obligation. Rep. No. GAO1, OCG 97–16, 1997 WL 67783 (Jan. 31, 1997). See also Fellows et al., Committed Partners and Inheritance, supra note 174; Matthew R. Dubois, Legal Planning for Gay, Lesbian and Non-Traditional Elders, 63 Albany L. Rev. 263 (2000).
184 Mary Ann Case has shown how in litigation of lesbian and gay issues other than marriage cases, couples are usually absent. See Mary Ann Case, Couples and Coupling in the Public Sphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 Va. L. Rev. 1643 (1993). She also highlights cases where an individual employee is in a same-gender couple and open about it, and that fact is used against the employee. For a recent example, see Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc) (upholding state attorney general’s decision to rescind job offer to female employee for participating in a wedding ceremony with another woman). She points out that in the few cases where courts have been able to recognize and accept a lesbian or gay couple, one of the partners is either dead, see Braschi v. Stahl Assoc. Co., 544 N.Y.S.2d 784 (1989) (surviving partner of deceased tenant is “family member” within meaning of rent control statute), or seriously disabled, see In re Guardianship of Kowalski, 478 N.W.2d 790 (Minn. 1991), discussed infra at text accompanying notes 190–200. Cheshire Calhoun aptly has observed that an important subtext in debates about treatment of lesbian and gay male couples is the powerful but false notion that gay men and lesbians are incapable of romantic love and commitment. See Cheshire Calhoun, Making Up Emotional People: The Case of Romantic Love, in The Passions Of Law 3, 24 (Susan Bandes, ed.) (forthcoming 1999). Law generally reflects this. The notion that gay men and lesbians are incapable of romantic love is the flip-side of the also incorrect notion that gay men and lesbians are defined by sexual activity, which is discussed further at Part IV.C.
185 See Hafen, Individualism and Autonomy, supra note 4, at 23.
186 See Calhoun, supra note 184 (highlighting stigmatizing conception of gay men and lesbians as possessing an excessive and unregulated sexuality and psychological inability to maintain stable relationships); Wriggins, Questions of Constitutionality, supra note 7, at 394–96 (arguing that exclusion of an entire group from marriage makes a negative statement about the group and that wholesale exclusion of gay man and lesbians from the institution, contrasted with the relaxed treatment of entry into marriage by heterosexuals, is stigmatizing). I am not claiming that the only valid form of relationship is a marriage-like relationship. A long-term, committed, marital relationship, however, can be a very important, challenging and satisfying part of life which brings benefits to the individuals involved, as well as society. See, e.g., Eskridge, supra note 7, at 109–11; Ball, supra note 7, at 1938; Brinig, supra note 149, at 1600.
187 See Christensen, Legal Ordering, supra note 13, at 1300–01.
188 See, e.g., Adoption of Tammy, 416 Mass. 205, 207 (1993) (adoption by two women of biological child of one of the women allowed); In re Guardianship of Kowalski, 478 N.W.2d 790 (Minn. 1991) (lesbian may be guardian of her severely injured and disabled partner despite objections of injured person’s parents); Braschi v. Stahl Assoc. Co., 544 N.Y.S.2d 784 (1989) (holding that under New York rent control statute, long-term gay partner of deceased tenant was a “family member”).
189 See Hafen, Individualism and Autonomy, supra note 4, at 32.
190 Id. at 38–40.
191 See Glendon, Transformation of Family Law, supra note 2, at 297.
192 Hafen, Individualism and Autonomy, supra note 4, at 23.
193 See Regan, supra note 5, at 120 (moral aspiration of marriage is cultivation of a relational sense of identity not necessarily heterosexual intimacy); Ball, supra note 7, at 1936–42 (same-sex relationships are morally good and provide means for gay and lesbian people to connect with one another and achieve autonomy); Brinig, supra note 149, at 1600 (same-sex couples “can make the permanent commitment and exhibit the selfless loving and giving required for a covenant”); Michael Perry, The Morality of Homosexual Conduct: A Response to John Finnis, 9 Notre Dame J. L. Ethics & Pub. Pol’y 41, 55(1995) (both heterosexual and homosexual relationships can be lifelong, monogamous, faithful, and loving).
194 See 478 N.W.2d 790 (Minn. 1991).
195 See id.
196 See id.
197 See id.
198See id. at 791–92.
199 See Guardianship of Sharon Kowalski, 478 N.W.2d at 793.
200 See id. at 793–94.
201 See id. at 794. The court went on to write that: “Oral hygiene is crucial to prevent recurrence of a mouth fungus which can contribute to pain and tooth loss, further inhibiting Sharon’s communication skills and her ability to eat solid foods.” Id.
202 See id. at 793.
203 See Hafen, Individualism and Autonomy, supra note 4, at 30. While the ultimate outcome was positive for Karen and Sharon, it took eight years to achieve. Had they been married, Karen’s appropriateness as a guardian would have been assumed.
204 1999 WL 1211709 (Dec. 20, 1999).
205 Leah Gardner, Courting the Right to Marry, Vt. Times, Aug. 20, 1997 at 7.
206 Id. Regan also gives various examples of the commitments and bonds of gay male and lesbian couples. See Regan, supra note 5, at 120–21. Other examples abound. See, e.g., Eskridge, supra note 7, at 5–10.
207 Stephanie Innes, Prison’s Ban on Gay Contact Visits Challenged, Tucson Citizen, Sept. 15, 1997 available in 1997 WL 11147718.
208 See Letter from Terry L. Stewart, Director, Arizona Department of Corrections, to Arizona House Representative Ken Cheuvront (Aug. 8, 1997) (on file with the author).
209 See id.
210 Id.
211 Id.
212 Also it is revealing that the Department considers hugging and kissing between gay people to be “homosexual activity,” when it seems not to consider such activities between heterosexuals to be “heterosexual activity.” See infra notes 377–87 and accompanying text.
213 See 707 N.E.2d 201 (Ill. 1998).
214 Id. at 203.
215 Id.
216 Many other examples could be listed. In Rovira v. AT&T, Sandra Rovira and her partner Marjorie Forlini had a private wedding ceremony and pooled their financial resources. 817 F. Supp. 1062, at 1064 (S.D.N.Y. 1993). Rovira’s children from a prior marriage lived with Rovira and Forlini for ten years. Forlini died of cancer after the couple had been together for twelve years. See id. After Forlini died, Rovira and Forlini’s children applied for Sickness Death Benefits from Forlini’s employer, AT&T, which were denied by AT&T. The decision to deny benefits was upheld by the court. See id. In yet another example, Sherry Barone and Cynthia Friedman had been partners for thirteen years when Friedman found out she had cancer. They signed powers of attorney, wills, health care directives, written instructions to carry out wishes, and so on, to ensure that Barone would have control over, among other things, Friedman’s burial. Yet, once Friedman died, the cemetery refused to allow the inscription she had wanted, “Beloved life partner, daughter, granddaughter, sister, and aunt.” Barone had to sue in order to get the cemetery to follow her instructions, and after a year, the cemetery relented. Graff, supra note 55 at 48. In Adams v. Howerton, two men, one of whom was Australian and one of whom was a U.S. citizen, privately married and subsequently sought to have the Australian declared an “immediate relative,” so he could permanently reside in this country. See 486 F. Supp. 1119, 1120 (C.D.Cal. 1980), aff’d, 673 F.2d 1036, 1038 (9th Cir. 1982), cert. den., 458 U.S. 1111 (1982). Yet the INS declared, and a federal district court affirmed, that the Australian was not an immediate relative of the American, so that regardless of the bond between them the Australian would not be entitled to permanent residence status. See id. In Coon v. Joseph, a California court held that a plaintiff who had witnessed his partner being assaulted could not claim negligent infliction of emotional distress since he did not meet the “close relationship” test required to state a claim. See 192 Cal. App. 3d 1269 (1987).
217 Hafen, Individualism and Autonomy, supra note 4, at 23.
218 See Perry, Morality of Homosexual Conduct, supra note 193, at 56. Marriage does not require that partners have particular financial or living arrangements, nor does marriage law require the capacity for “familistic behavior” as a condition for entry into the institution.
219 See supra notes 196–216 and accompanying text.
220 As Martha Minow states, “unless we start to make family law connect with how people really live, the law is either largely irrelevant or merely ideology: merely statements of the kinds of human arrangements the lawmakers do and do not endorse.” Minow, Redefining Families, supra note 86, at 271.
221 See supra note 184.
222 These include intestacy laws, spouse’s elective share laws, community property laws, laws providing for equitable distribution of marital property and alimony at divorce, and a wide variety of other provisions. See Chambers, What if? supra note 172; Christensen, If Not Marriage, supra note 172; Christensen, Legal Ordering, supra note 13. These provisions not only reflect the expressive function, but also the protective function, because they are in part aimed at protecting the economically weaker party from disadvantage caused by the other’s actions. For example, laws providing for equitable distribution of property are aimed at dividing property in a fair manner, regardless of which party has title.
223 See Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven but Not Hell Either, 73 Denv. U. L. Rev. 1107, 1141(1996) [hereinafter Ertman, Contractual Purgatory].
224 See Fellows et al., supra note 174, at 2. Efforts to inherit through intestacy laws are unavailing. See In re Estate of Hall, 707 N.E.2d 701 (1998) (discussed at text accompanying notes 213–16).
225 See Guardianship of Sharon Kowalski, 478 N.W.2d 790 (Minn. 1991), discussed at text accompanying notes 194–216.
226 By mentioning property disputes, it is not to be inferred that all lesbians and gay men are affluent. According to research by Professor Lee Badgett, “lesbians and gay men earn no more than heterosexual people; indeed, in some cases gay men appear to earn less than comparable heterosexual men.” M.V. Lee Badgett, Income Inflation: The Myth of Affluence Among Gay, Lesbian, and Bisexual Americans, 2 National Gay and Lesbian Task Force Policy Institute (1998) (visited Feb. 2, 2000) <http://www.ngltf.org/pub>.
227 See, e.g., Hanselman v. Shepardson, 1996 WL 99377 (S.D.N.Y. 1996) (describing property dispute between same-gender couple that had broken up, involving claims for breach of contract or quasi-contract, rescission of contract, fraud, misrepresentation and negligence). See generally Christensen, Legal Ordering, supra note 13. For disputes involving unmarried heterosexuals who lived together and split up, compare Morone v. Morone, 413 N.E.2d 1154 (N.Y. 1980) (enforcing only express contracts), with Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979) (failing to enforce even express contracts).
228 See supra notes 45–46.
229 Hafen, Individualism and Autonomy, supra note 4, at 23.
230 And, of course, provided they meet other requirements of marriage, such as being of age and not already being married. The Vermont Supreme Court’s decision in Baker v. Vermont acknowledges that the extension of marriage to same-gender couples is a matter of recognizing commitment and, at a deeper level, commonality between human beings. The court wrote “[t]he extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity.” Baker v. Vermont, 1999 WL 1211709, at *23.
231 See supra Part II.D; Minow, Redefining Families, supra note 86, at 282 (arguing that law should be flexible regarding entry into families but should enforce family duties).
232 See supra Part II.A; supra note 4. Crucially, nothing about “belonging” is inherently heterosexual.
233 See Bartlett, Saving the Family from the Reformers, supra note 96, at 815–16 (noting that marriage remains an important ideal).
234 Hafen, Constitutional Status, supra note 4, at 487. See Christensen, Legal Ordering, supra note 13, at 1321–22.
235 Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 245.
236 Id. at 238.
237 Indeed, one need not embrace the entire “new Family Morality” outlined by Cahn in order to recognize marriage by same-gender couples.
238 Regan, supra note 5, at 120.
239 Schneider, The Channelling Function, supra note 1, at 497, 505–06.
240 Id. at 497.
241 Chambers, What if?, supra note 172, at 485. Many elements of law have overlapping functions. For example, the Family and Medical Leave Act, 29 U.S.C. §§ 2611, 2612(a)(1)(c) (1994), has a facilitative function in that it helps employees care for sick relatives without losing their jobs. It also has an expressive function, in the limitations it sets on who can care for whom; part of its expressive message is that gay couples’ relationships do not count.
242See 29 U.S.C. §§ 2611, 2612(a)(1)(c).
243 To take a concrete example, if a gay person owns a house, then falls in love with someone, the partner moves into the house, and the homeowner puts the house in joint tenancy to reflect the couple’s closeness and financial intertwinedness, this could be a taxable gift by the original homeowner to the new joint tenant. See 26 U.S.C. § 2503 (1994). On the same facts, if the couple consisted of opposite sex partners, they got married and the homeowner put the house in joint tenancy, this would not be a taxable gift. The gay person’s situation is treated the same as if a person owns a house, and puts a stranger on the deed. 26 U.S.C. § 2503 (1994). See Boris I. Bittker & Lawrence Lokken, Federal Taxation Of Income, Estates And Gifts ¶ 123.3, P-123–5(2) (2d. ed. 1993).
244 Schneider, The Channelling Function, supra note 1, at 497.
245 Graff, supra note 55, at 49.
246 See Christensen, If Not Marriage, supra note 172, at 1733 n.213; Christensen, Legal Ordering, supra note 13, at 1341, 1344–1347; Ertman, Contractual Purgatory, supra note 223, at 1138. Ertman notes that it seems that “the best way to maximize the likelihood of judicial enforcement of gay couples’ cohabitation contracts is to expressly formulate them as business agreements omitting any mention of the parties’ relationship.” Ertman, Contractual Purgatory, supra note 223, at 1138. See, e.g., Posik v. Layton, 695 So.2d 759 (Fla. Dist. App. 1997) (holding enforceable a written agreement providing that if Posik breached agreement she would pay Layton $2500 per month for rest of Layton’s life), Crooke v. Gilden, 414 S.E.2d 645 (Ga. 1992) (upholding contract between lesbian couple for joint ownership and division of real property, reversing trial court’s decision that contract was void because parties’ ‘illegal and immoral’ sexual relationship implicitly was part of contract).
247 Christensen, If Not Marriage, supra note 172, at 1733–34; Christensen, Legal Ordering, supra note 13, at 1321–22. Even when members of a couple contract with each other, this does not change the couple’s situation in relation to third parties. For example, as Christensen points out, an individual may try and negotiate with his employer to have the employer pay for the health insurance of the life partner, but this is unlikely to be successful. See id. at 1346. Ertman argues that enforcement of gay couples’ contracts is better than nothing; this is not disputed. Ertman, Contractual Purgatory, supra note 223, at 1110.
248 See supra notes 86–89 and accompanying text.
249 But see Scott, Relational Contract, supra note 1; Ertman, Commercializing Marriage, supra note 86.
250 See supra notes 86–89 and accompanying text; Fellows et al., Committed Partners and Inheritance, supra note 174, at 19–22; Silbaugh, Family Economy, supra note 14, at 134. The facilitative function of enforcing contracts stands in some tension with the aspect of the protective function, which is supposed to protect against economic harms, in view of unequal bargaining power between parties.
251 See supra notes 72–75 and accompanying text.
252 See Christensen, If Not Marriage, supra note 172, at 1733; Christensen, Legal Ordering, supra note 13, at 1344–47.
253 Domestic violence “is a societal problem of epidemic proportions.” Deborah Goelman & Roberta Valente, When Will They Ever Learn? Education to End Domestic Violence: A Law School Report 1, ABA Commission on Domestic Violence (1997). The exact incidence of domestic violence is impossible to determine, but it is common. Katherine T. Bartlett & Angela Harris, Gender And Law: Theory, Doctrine, Commentary 561–565 (2d ed. 1998). Abuse of children is also a major problem. See Amy Sinden, In Search of Affirmative Duties Toward Children under a Post-DeShaney Constitution, 139 U. Pa. L. Rev. 227 (1990).
254 See Schneider, The Channelling Function, supra note 1, at 497.
255 See Sandra E. Lundy, Abuse That Dare Not Speak its Name: Assisting Victims of Lesbian and Gay Domestic Violence in Massachusetts, 28 New. Eng. L. Rev. 273, 292 n.105 (1994). Some states’ statutes, however, apply only to heterosexual couples. See id. In addition, problems initially arose with some statutes’ application to gay and lesbian couples. For example, prior to statutory amendments, Maine’s law stated that one could seek a protective order if the parties were or had been “spouses or living as spouses.” A trial judge dismissed a complaint by a lesbian against her allegedly abusive partner, reasoning that because lesbians could not marry one another they could not live “as spouses.” Thus, the alleged victim could not seek relief under the statute. Sax v. Bowler, No. 87–CV–PA–697 (Maine Dist. Ct. Dec. 1, 1987) (order dismissing complaint). But see State v. Hadinger, 573 N.E.2d 1191, 1192 (Ohio Ct. App. 1991) (holding that two people of the same gender can be living “as . . . spouse[s]” with one another for purposes of application of the domestic violence statute).
256 See generally Lundy, Abuse that Dare Not Speak its Name, supra note 255.
257 It may seem somewhat surprising to bring up domestic abuse in the context of marriage and to speculate that marriage may increase sensitivity to domestic abuse, given the history of ignoring abuse in marriage. Marriage does not provide an excuse for ignoring abuse, however, and perhaps recent increased awareness of dynamics within relationships may make courts more responsive when a gay married partner abuses his or her spouse. As Hafen notes, “the new skepticism about relationships of dependency has exposed certain patterns of abuse and domination that cried out for closer public and legal scrutiny.” Hafen, Individualism and Autonomy, supra note 4, at 38.
258 Schneider, The Channelling Function, supra note 1, at 497.
259 See Baker, supra note 124, at 1535–38 (describing reasons law generally should not intervene in ongoing horizontal relationships).
260 Numerous scholars have written about how divorce, for example, does not protect the less economically powerful spouse. See, e.g., Martha F. Fineman, The Illusion Of Equality: The Rhetoric And Reality Of Divorce Reform (1991); Ertman, Commercializing Marriage, supra note 86, at 17–22, 31; Schneider, The Channelling Function, supra note 1, at 497.
261 It is difficult to analyze how current divorce law protects from psychological injuries. Although it was hoped that no-fault divorce would reduce the acrimony in divorces, it is not clear if that has taken place. Spouses now often can sue after marriage for torts such as intentional infliction of emotional distress during the marriage. See Hakkila v. Hakkila, 812 P.2d 1320, 1326–27 (N.M. 1991); McCoy v. Cooke, 419 N.W.2d 44, 46 (Mich. App. 1988); Courtney v. Courtney, 413 S.E.2d 418, 420 (W. Va. 1991); Stuart v. Stuart, 421 N.W.2d 505 (Wisc. 1988). It is not clear, however, if that threat serves as a deterrent and thus protects against psychological injuries.
262 See Chambers, What If?, supra note 172, at 478–83.
263 See Nancy H. Rogers & Craig A. McEwen, Mediation: Law, Policy And Practice App. B, Cum. Supp. 149–251 (2d. ed. 1998).
264 See id. § 7.01, ch. 7 p. 4.
265 There are major issues about how well the law currently performs this function in the context of divorce. It is designed, however, more for that function than the law concerning strangers. See supra note 260.
266 Schneider, The Channelling Function, supra note 1, at 498.
267 See id. at 529.
268 See id. at 510.
269 See id. at 507–11.
270 Id. at 508.
271 Two nineteen-year-olds of the same gender who found themselves in love in the mid-twentieth century indeed would be likely to have had a difficult time acting on their feelings. The 1950s were the heyday of the psychiatric notion that homosexuality was sick. For example, in 1952 the American Psychiatric Association, Diagnostic and Statistic Manual, Mental Disorders (DSM-I) listed homosexuality as a sociopathic personality disturbance. Neil Miller, Out of the Past: Gay and Lesbian History from 1869 to the Present 249 (1995). During that period, gays were frequently dismissed from government and other jobs simply because of their homosexuality (or suspicions of same) and there was an “atmosphere of persecution and purge nationwide.” Id. at 271. Given the situation in the 1950s, the hypothetical same-gender nineteen-year-olds might simply have been isolated and not fallen in love. In The Channelling Function, Schneider discusses a hypothetical legislator who posits a “normative model of ‘marriage’ with several fundamental characteristics. It is monogamous, heterosexual, and permanent.” Schneider, The Channelling Function, supra note 1, at 500–01. The legislator writes “standards” for entry into marriage “which prohibit homosexual unions.” Id. at 502. Thus, it appears that the two nineteen-year-olds are intended to be of different genders.
272 In 1955, “[m]ore than half of the States of the Union [had] miscegenation statutes.” Naim v. Naim, 87 S.E.2d 749, 753 (Va. 1955). In the 1950s, Alabama, for example, still criminally prosecuted violations of its miscegenation statute and Virginia still enforced its prohibitions. Peter Wallenstein, Race, Marriage, and the Law of Freedom: Alabama and Virginia 1860s–1960s, 70 Chi. Kent L. Rev. 371, 412, 416 (1994). Gunnar Myrdal in 1944 noted the centrality of the bans on racial intermarriage for the system of white supremacy. Gunnar Myrdal, An American Dilemma 606 (1944). Arnold Rose, in his official summary of Myrdal’s book, wrote “[e]ven in the northern states where, for the most part, intermarriage is not barred by law, mixed couples are punished by nearly complete social ostracism.” Arnold Rose, The Negro in America 22 (1948); see also Morgan, supra note 128 (describing prosecutions of prominent champion black boxer Jack Johnson in 1920s for violation of Mann Act because he married white women and hired white women prostitutes). The idea of black men socializing with white women has continued past the 1950s to be racially charged for many. For example, in 1981 a black man in Alabama was lynched; suggestions were made in the community that he was killed for socializing with white women or was mistaken for a co-worker who socialized with white women. N.Y. Times, July 28, 1981, at A12, col. 6. Three white men arrested for the murder were released after a grand jury refused to issue indictments. Id. at A12, col. 6. Given the barriers of racism, racist violence and segregation of the 1950s, the hypothetical nineteen-year-olds might well never have met or fallen in love. And if the hypothetical nineteen-year-olds were of different races and of the same gender, their romance seems even less likely.
273 Schneider notes that “channelling’s worth in any particular instance will depend on the specific institutions it supports. Even if an institution serves the function’s ends well, it must be evaluated in terms of all its social consequences.” Schneider, The Channelling Function, supra note 1, at 522. The major mechanisms of channelling to him are to create social institutions and to channel people into them through several methods. One method is recognizing and endorsing the institution; another is rewarding participation in an institution; a third is disfavoring competing institutions; a fourth is penalizing non-use of an institution. See id. at 503–04. “By and large, then, the channelling function does not primarily use direct legal coercion.” Id. at 504.
274 Schneider, The Channelling Function, supra note 1, at 511.
275 See supra notes 250–62 and accompanying text (pointing out importance of statutory mechanisms such as equitable property distribution, alimony, and alternative dispute resolution).
276 See Baker, Property Rules, supra note 124, at 153 n.159 (discussing Schneider’s tennis game analogy and showing that fact that a game has rules does not mean that rules are fair or equally challenging to all participants). In the case of marriage law historically, the rules have been tremendously unfair to women. See supra notes 108–130 and accompanying text. Currently, marriage laws are tremendously unfair to gay men and lesbians.
277 See, e.g., Bartlett, Saving the Family from the Reformers, supra note 96, at 816 (noting that family law is infused with moral concerns).
278 Strasser, supra note 7, at 72.
279 See Bartlett, Saving the Family from the Reformers, supra note 96, at 819–22 n.124 (reviewing scholarship about divorce and its correlations with child poverty and other negative factors).
280 As the Vermont Supreme Court wrote, “[t]he state’s interest in extending official recognition and legal protection to the professed commitment of two individuals to a lasting relationship of mutual affection is predicated on the belief that legal support of a couple’s commitment provides stability for the individuals, their family, and the broader community.” Baker v. Vermont, 1999 WL 1211709, at *20 (Dec. 20, 1999); see Baker, supra note 124, at 1530–38; Becker, Two are Better, supra note 82; Graff, supra note 55, at 45–48.
281 See Ball, supra note 7, at 1938.
282 See Hafen, Constitutional Status, supra note 4, at 490 (noting variety of acceptable family forms).
283 Ball, supra note 7, at 1938.
284 See Graff, supra note 55, at 45–48. See generally Regan, supra note 5; Becker, Two are Better, supra note 82.
285 Glendon, Transformation Of Family Law, supra note 2, at 307 (noting that much care of dependents is provided within the family); see, e.g., In re Guardianship of Kowalski, 478 N.W.2d 790 (Minn. 1991).
286 Carlos Ball has thoughtfully written of perfectionist liberal theory as providing a discourse favoring marriage by same-gender couples. See Ball, supra note 7. Linda McClain also recently made an argument for toleration as respect, which argues that the “prohibition of same-sex marriage imposes an intolerant, unjust, and sectarian governmental orthodoxy about gender.” McClain, supra note 7, at 121.
287 Glendon, Transformation Of Family Law, supra note 2, at 306–13. As Schneider says, “[f]or people to be moved to help each other, they need some sense of commonality with them—some sense that their fellow citizens are people like themselves, whose experiences, concerns, and interests they can at least understand and to some degree share. Social institutions help provide such a sense.” Schneider, Channelling Function, supra note 1, at 511. Extending this observation, the exclusion from marriage reduces the “sense of commonality” that heterosexuals otherwise might feel with gay men and lesbians. Glendon notes that the extent of law’s influence is difficult to measure. It is easy to exaggerate law’s influence, yet that influence is significant and must not be ignored. See Glendon, Transformation Of Family Law, supra note 2, at 311–13. Schneider also notes the difficulty of measuring the consequences of legal programs. See Schneider, Channelling Function, supra note 1, at 521–22.
288 For example, in Hafen’s discussion of “belonging,” there is no requirement that the “belonging” be related to procreation, although of course often it is related to parenting and children. See Hafen, Individualism and Autonomy, supra note 4. He writes that the lack of “belonging” and the demands it makes, are “a major loss to society,” but procreation is not a necessary or sufficient condition for belonging. See id. at 41.
289 For example, in Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court decided that the state could not bar access of married couples to contraceptives, thus showing that the state could not decide that procreation was essential to marriage.
290 482 U.S. 78 (1987).
291 482 U.S. at 96.
292 See Hafen, Constitutional Status, supra note 4, at 490 (noting variety of acceptable family forms including childless marriages). Glendon has proposed that there should be a particular set of divorce rules designed for childless couples where marriages of short duration end. See Glendon, Abortion And Divorce, supra note 2, at 103.
293 There is a scholarly debate about the ethical and moral significance of sexual activity between heterosexual married members of a sterile couple as compared to the ethical and moral significance of sex between members of a gay male or lesbian couple. See, e.g., Stephen Macedo, Homosexuality and the Conservative Mind, 84 Geo. L.J. 261, 287 (1995) (arguing that there is no significant ethical difference between the two situations.); Gerald Bradley & Robert P. George, Marriage and the Liberal Imagination, 84 Geo. L.J. 301 (1995) (arguing that justifying point of sexual relations between spouses is not pleasure or expressions of feeling but is intrinsic good of marriage considered as one-flesh communion of spouses actualized by acts which, qua reproductive acts, unite spouses biologically); Patrick Lee & Robert P. George, What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union, 42 Am. J. Juris. 135, 150 (1997) (arguing that heterosexual couples “who engage in a reproductive type act, truly become one body, one organism,” and that this difference between heterosexual sex and homosexual sex is morally significant); John M. Finnis, Law, Morality, and “Sexual Orientation,” 69 Notre Dame L. Rev. 1049, 1066 (1994) (arguing that “union of reproductive organs of husband and wife unites them biologically, and this unites them personally, whereas gay couples’ sexual activity can not make them a biological and therefore a personal unit”); Koppelman, Is Marriage Inherently Heterosexual?, supra note 21, 51, 62–95 (arguing that even if marriage is noninstrumental good, it is not necessarily heterosexual and couples do not need to engage in “sexual acts of the reproductive kind” in order to realize its goods).
294 See Christensen, If Not Marriage, supra note 172, at 1759–68; Christensen, Legal Ordering, supra note 13.
295 Christensen, If Not Marriage, supra note 172, at 1759–68, Christensen, Legal Ordering, supra note 13. The trial court in Baehr v. Miike came to a similar conclusion. See Civ. No. 91–1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).
296 As Schneider writes, “I doubt that you can go home again, and even if you could, I doubt you would enjoy it.” Schneider, Moral Discourse, supra note 1, at 1808.
297 This notion is basically equivalent to the argument that gay people, by seeking access to marriage, are “repudiating morality,” made by Wardle in Efforts to Legitimate, supra note 19. This argument is discussed in more detail in Part IV.C, infra.
298 See Regan, supra note 5, at 120; Ball, supra note 7, at 1936–1942; Brinig, supra note 149, at 1600; Michael Perry, The Morality of Homosexual Conduct: A Response to John Finnis, 9 Notre Dame J. L. Ethics & Pub. Pol’y 41, 55 (1995). See Part IV.C for further discussion.
299 Bartlett writes that “reforms . . . such as gay and lesbian marriage, are also supportable” within her “family-enabling model of reform.” Bartlett, Saving the Family from the Reformers, supra note 96, at 854. Cahn’s idea of a “new Family Morality,” based on values of commitment, caring and equity, recognizes that efforts to allow same-gender couples to marry “reflect the importance and value of marriage and represent efforts to strengthen, not undermine the institution.” Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 246. Minow’s idea that we should create welcoming rules governing entry into families and be strict about enforcing family responsibilities, leads to allowing gay men and lesbians to be family members. Minow, All in the Family, supra note 5, at 307; Minow, Redefining Families, supra note 86, at 280–82. Regarding the view that gay men and lesbians should be excluded from family membership, she writes, “[i]t will not do . . . to support this view by reference to nature, convention, or even religion. Many religions are themselves struggling with these questions. Some are performing marriages of gays and lesbians, and some are ordaining gay and lesbian clergy. Minow, All in the Family, supra note 5, at 283-84. Regan’s retooled status-based model of marriage calls for recognition of marriage by same-gender couples. See Regan, supra note 5, at 120.
300 See supra notes 7, 21 and 193. For scholarship opposed to marriage by same-gender couples, see, for example, Bradley & George, supra note 293; David Orgon Coolidge, Same-Sex Marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. Tex. L. Rev. 1 (1997); Finnis, Law, Morality and “Sexual Orientation,” supra note 293; Lee & George, What Sex Can Be, supra note 293; Raymond O’Brien, Single-Gender Marriage: A Religious Perspective, 7 Temp. Pol. & Civ. Rts. L. Rev. 429 (1998); Wardle, Efforts to Legitimate, supra note 19; Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. Rev. 1.
301 Lynn Wardle makes these arguments against same-gender marriage in Efforts to Legitimate, supra note 19.
302 See infra Part IV.A.
303 See infra Part IV.B.
304 See infra Part IV.C.
305 Wardle, Efforts to Legitimate, supra note 19, at 758. He claims that “[i]n reality, it is a profound, but subtle and disarming, rejection of marriage.” Id.
306 Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 246.
307 See Wardle, Efforts to Legitimate, supra note 19, at 758.
308 Marriage has changed constantly over the centuries. Mary Ann Glendon calls it a “polymorphous and mutable institution.” Glendon, Transformation Of Family Law, supra note 2, at 4; see supra note 55.
309 Id., citing Nancy Polikoff citing Thomas Stoddard, Why Gay People Should Seek the Right to Marry, in Lesbian And Gay Marriage: Private Commitments, Public Ceremonies 13, 14–16 (Suzanne Sherman ed., 1992).
310 See supra Part II.B.
311 Schneider, The Channelling Function, supra note 1, at 519.
312 Elizabeth Cady Stanton, Address to the Legislature of the State of New York (February 14, 1854). I History Of Women’s Suffrage, 1848–1861, at 595–605 (Elizabeth Cady Stanton, Susan B. Anthony & Matilda Joslyn Gage, eds., reprint ed. 1985), reprinted in Katherine T. Bartlett and Angela P. Harris, supra note 253, at 57, 60.
313 See Strasser, supra note 7, at 117–20. See generally Glendon, Transformation Of Family Law, supra note 2; Graff, supra note 55; Grossberg, supra note 55; Stone, supra note 55.
314 See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994); Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1998 Wis. L. Rev. 187 (1988); see also Christensen, If Not Marriage, supra note 173, at n.20 (listing scholarship making this argument).
315 Wardle, Efforts to Legitimate, supra note 19, at 753.
316 See supra Part II.B.
317 Wardle, Efforts to Legitimate, supra note 19, at 753.
318 See supra note 127.
319 See supra Part II.B.
320 Wardle emphasizes information about lack of male monogamy in committed gay male relationships as part of his effort to show that seeking marriage is a retreat from it. See Wardle, Efforts to Legitimate, supra note 19, at 759–60. However, this does not shed light on what behavior will be if marriage by same-gender couples is allowed. According to Sex In America, “no matter what [married couples] did before they wed, no matter how many partners they had, the sexual lives of married people are similar. Despite the popular myth that there is a great deal of adultery in marriage, our data and other reliable studies do not find it. Instead, a vast majority are faithful while the marriage is intact.” Robert T. Michael et al., Sex In America: A Definitive Survey 89 (1994). Some reach different conclusions, however, about the prevalence of adultery. See, e.g., Joan D. Atwood and Madeline Seifer, Extramarital Affairs and Constructed Meanings: A Social Constructionist Therapeutic Approach, 25 Amer. J. Of Family Therapy 55 (1997) (estimating 50–60% of married men and 45–55% of married women engage in extramarital sex at some time during their marriage).
321 See Stoddard, supra note 309, at 13, 14–16. See generally Becker, Women and Morality, supra note 7.
322 See generally Becker, Women and Morality, supra note 7.
323 Wardle, Efforts to Legitimate, supra note 19, at 76.
324 See, e.g., Finnis, Law, Morality and “Sexual Orientation,” supra note 293; O’Brien, supra note 300. See Part IV.C. for further discussion of Finnis’ arguments.
325 See Strasser, supra note 7, at 12–13; see also Eskridge, supra note 7, at 193–217 (Appendix: Letters from the Faithful on the Legal Recognition of Same-Sex Marriage) .
326 See supra note 103.
327 For additional discussion, see infra notes 373–376 and accompanying text. See Baker v. Vermont, 1999 WL1211709, at *23 (Dec. 20, 1999) (noting that “it is plaintiff’s claim to the secular benefits and protections of marriage that . . . characterizes this case”). As Martha Minow states regarding those who support the view that gay men and lesbians should be excluded from the privileges of family membership, “[i]t will not do . . . to support this view by reference to nature, convention, or even religion. Many religions are themselves struggling with these questions; some are performing marriages for gays and lesbians, some are ordaining gay and lesbian clergy.” Minow, All in the Family, supra note 5, at 284.
328 Wardle, Efforts to Legitimate, supra note 19, at 762. The notion that the man-woman requirement “reflects something fundamental and inherent in the natures of men and women” is discussed more fully at infra Part IV.B.
329 Given the historical evidence about changes in the functions, laws, and customs surrounding marriage, it is not at all clear what, if anything, “traditional male-female marriage” means. See generally Graff, supra note 55.
330 Wardle, Efforts to Legitimate, supra note 19, at 749.
331 Id. at 748.
332 See Hafen, Individualism and Autonomy, supra note 4, at 23–24.
333 Brinig, supra note 149, at 1600.
334 Hafen, Constitutional Status, supra note 4, at 486.
335 Hafen, Individualism and Autonomy, supra note 4, at 38–40.
336 Wardle, Efforts to Legitimate, supra note 19, at 748.
337 Elsewhere in the article, Wardle seems to endorse the idea that “marriage is ordained by God, and has some absolute fixed immutable characteristics.” Id. at 761–62. It appears from the reference to the integration of gender differences being the core and essence of marriage, that to him the man-woman requirement is one of the most important, if not the most important, of the “fixed immutable characteristics” of marriage.
338 See, e.g., REGAN, supra note 5, at 120.
339 See supra note 55. Glendon, for example, writes that marriage has evolved to being an institution now held together primarily by emotional ties as opposed to earlier times when it was held together primarily by financial and procreative ties. See Glendon, Transformation Of Family Law, supra note 2, at 293.
340 In Baker v. Vermont, the state of Vermont advanced this gender integration argument as a reason for restricting marriage to opposite sex couples. See No. S1009–97 (Vt. Super. Ct. Dec. 19, 1997), slip op. at 15, appeal docketed No. 98–32 (Vt. Jan. 15, 1998). The trial judge found that this was not a strong enough argument for the marriage restrictions sufficient to survive a 12(b)(6) motion, since it was based on impermissible sex stereotyping. See id. In the Vermont Supreme Court’s recent decision in Baker v. Vermont, this argument was alluded to but not discussed. Baker v. Vermont, 1999 WL1211709, at *19 (referring to “state’s purported interests . . . in bridging differences between the sexes”). See generally Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).
341 See, e.g., Twila Perry, Alimony, Race, Privilege and Dependency, supra note 128 (noting that issues of alimony and dependency on average may be very different for black women than for white women).
342 See supra notes 280–82 and accompanying text.
343 Wardle, Efforts to Legitimate, supra note 19, at 749.
344 Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?, 18 Fam. L.Q. 257 (1984).
345 Id. at 258; see also Leigh B. Bienen, Defining Incest, 92 Nw. U. L. Rev. 1501 (1998) (discussing history of incest laws and prosecutions).
346 Bratt notes “the intrinsically abusive nature of adult-child sexual relationships.” Bratt, supra note 343, at 258. Bratt notes that in a random sample of 101 appellate decisions in cases involving claimed violations of criminal incest laws, all involved prosecutions for sexual intercourse, and 94 cases “involved father-daughter, father-adoptive daughter or stepfather-stepdaughter relationships.” Id. at 257.
347 See Bratt, supra note 344, at 258–60.
348 See id. at 258.
349 For example, in Rhode Island, marrying one’s first cousin is allowed. See R.I. Gen. Laws § 15–1–1 & § 15–1–2 (1996). In Maine, by contrast, one can only marry one’s first cousin if one provides a certificate of genetic counseling. Me. Rev. Stat. Ann. tit. 19-A, § 701(2)(B) (West 1998). There is also tremendous historical variation in what constitutes incest for marriage purposes. See Graff, supra note 55, at 160–68.
350 See, e.g., Strasser, supra note 7, at 72; Ball, supra note 7, at 1936–42; Perry, Morality of Homosexual Conduct, supra note 193. As Bartlett notes, “I oppose families based on incestuous relationships because of the high risk such relationships raise for exploitation.” Bartlett, Saving the Family from the Reformers, supra note 96, at 817.
351 See Ball, supra note 7, at 1938; supra notes 181–285 and accompanying text. See generally Eskridge, supra note 7.
352 Wardle argues that the principle of tolerance is not a basis for recognizing marriage by same-gender couples, because marriage is a preferred status which is distinct from a tolerated status. Wardle, Efforts to Legitimate, supra note 19, at 751–52, citing Hafen, Constitutional Status, supra note 4, at 546–47. Thus, Wardle says, “the claim for same-sex marriage is not a claim for mere tolerance, but for special preference.” Id. However, this reflects a cramped view of tolerance and a misleading view of marriage restrictions. Given the state’s treatment of marriage (it is a civil institution, there is minimal restriction on entry into it, there is no requirement of any special living arrangement or financial arrangement, it is available to people who are sterile and who have no interest in bearing or raising children, and who have no aptitude for intimacy), it can be argued that forbidding the entry of lesbian and gay male couples is indeed intolerant. See Wriggins, Questions of Constitutionality, supra note 7, at 395–96. Moreover, Linda McClain recently argued for a tolerance-as-respect model, which is violated by banning marriage by same-gender couples. McClain, supra note 7, at 121. To McClain, allowing such marriage “recognizes the diversity among persons concerning their conceptions of the good and the intimate relationships they seek to secure. At a minimum, permitting same-sex marriage accepts the fact of diversity and properly affords to gay men and lesbians the cultural resources to engage in the exercise of their moral powers.” Id. at 122.
353 Wardle, Efforts to Legitimate, supra note 19, at 756.
354 Strasser, supra note 7, at 72.
355 See Ball, supra note 7, at 1938. See generally note 193 and sources cited therein.
356 See Becker, Women and Morality, supra note 7, at 167. Becker notes that “moral and religious arguments have supported and opposed violence, slavery, and patriarchy.” Id.
357 In Sex In America, the researchers found that nearly half of the sample fall in what the authors called the “relational” category, whose members believed “that sex should be part of a loving relationship, but that it need not always be reserved for marriage. These people, who make up nearly half our sample, disagree with the statement that premarital sex is always wrong, for example. Most, however, say that marital infidelity is always wrong and that they would not have sex with someone they did not love.” Michael et al., supra note 320, at 233. One-third of the sample fell in the “traditional” category, and said “that their religious beliefs always guide their sexual behavior . . . that homosexuality is always wrong . . . that premarital sex, teenage sex, and extramarital sex are wrong.” Id. at 232–33.
358 Wardle, Efforts to Legitimate, supra note 19, at 756.
359 Andrew Koppelman refers to the “new natural law theorists” as Germain Grisez, John Finnis, Gerard V. Bradley, and Robert P. George. Koppelman, Is Marriage Inherently Heterosexual?, supra note 21, at 52. Germain Grisez is not a legal scholar, but Finnis, Bradley, and George rely on him. For examples of their work, see Finnis, Law, Morality and “Sexual Orientation,” supra note 293; Bradley & George, Marriage and the Liberal Imagination, supra note 293. Patrick Lee has written an article with Robert P. George, and he could be termed a new natural law theorist as well. See Lee & George, What Sex Can Be, supra note 293.
360 See Lee & George, What Sex Can Be, supra note 293, at 135.
361 Finnis, Law, Morality and “Sexual Orientation,” supra note 293, at 1067; see also Bradley & George, Marriage and the Liberal Image, supra note 293, at 305.
362 Finnis, Law, Morality and “Sexual Orientation,” supra note 293, at 1067.
363 See id. at 31.
364 See Perry, Morality of Homosexual Conduct, supra note 193.
365 See Koppelman, Is Marriage Inherently Heterosexual?, supra note 21.
366 See Ball, supra note 7.
367 See Macedo, Homosexuality and the Conservative Mind, supra note 293.
368 See Becker, Women and Morality, supra note 7.
369 See Ball, supra note 7, at 1909–19; Becker, Women and Morality, supra note 7, at 188; Koppelman, Is Marriage Inherently Heterosexual?, supra note 21, at 58–62; Macedo, Homosexuality and the Conservative Mind, supra note 293; Michael Perry, Morality of Homosexual Conduct, supra note 193, at 43.
370 See Ball, supra note 7, at 1909–19; Becker, Women and Morality, supra note 7, at 188; Koppelman, Is Marriage Inherently Heterosexual?, supra note 21, at 58–62; Macedo, Homosexuality and the Conservative Mind, supra note 293; Michael Perry, Morality of Homosexual Conduct, supra note 193, at 43.
371 Becker, Women and Morality, supra note 7, at 188.
372 Becker discusses the new natural law theorists’ views in greater detail and argues that keeping marriage closed to same-gender couples, particularly lesbian couples, is on questionable moral grounds for a number of reasons, including that it narrows women’s options. See id.
373 Ball, supra note 7, at 1912, 1918 (arguing that new natural law theorists give secular gloss to traditional but controversial Catholic theology); see also Perry, Morality of Homosexual Conduct, supra note 193, at 66 (noting that Finnis’ position defends the “official” view of the Catholic church but that this is not the position of all Christians or all Catholics).
374 Posner, supra note 152, at 76.
375 See Koppelman, Is Marriage Inherently Heterosexual?, supra note 21, at 95.
376 See supra notes 324–27 and accompanying text.
377 Ball, supra note 7, at 1912.
378 See Regan, supra note 5, at 120; Ball, supra note 7, at 1938; Bartlett, Saving the Family from the Reformers, supra note 96, at 843; Cahn, Review Essay: The Moral Complexities of Family Law, supra note 96, at 237; McClain, supra note 7, at 121.
379 Wardle, Efforts to Legitimate, supra note 19, at 756.
380 Id. at 756.
381 Becker, Women and Morality, supra note 7, at 175.
382 Becker might agree that “jeopardizing sexual integrity” is bad, but may have a very different analysis of what that means. See Becker, Women and Morality, supra note 7, at 170. Becker argues that alienating, objectifying, autonomy-denying sex is normatively negative, and that such sex is more likely in heterosexual relationships than in lesbian relationships. Thus, she argues, it is bad for women to be restricted to heterosexual marriage. See id. This illustrates the vagueness of Wardle’s statement.
383 For discussion of the incest comparison, see supra notes 344–49.
384 Wardle, Efforts to Legitimate, supra note 19, at 756.
385 See supra notes 362–63. Craig Christensen has noted that “[g]ay rights opponents have remained fixated on the sexual aspects of sexual orientation.” Christensen, If Not Marriage?, supra note 172, at 1783.
386 See Michael et al., supra note 320, at 140–41.
387 See Strasser, supra note 7, at 37–38. Strasser notes that “it would approach absurdity to suggest that only those who engage in sexual relations with the opposite sex are heterosexual. On such an account, individuals who refrained from having sexual relations, citing health or religious reasons, would seem to be neither heterosexual nor homosexual . . . . Individuals who wait until they marry before having sexual relations have a sexual orientation even if they have not yet been sexually active.” Id. at 37.
388 Id. at 40.
389 Wardle, Efforts to Legitimate, supra note 19, at 756; see Ball, supra note 7, at 1913.
390 Hafen, Individualism and Autonomy, supra note 4, at 42.