[*PG265]MARRIAGE LAW AND FAMILY LAW: AUTONOMY, INTERDEPENDENCE, AND COUPLES OF THE SAME GENDER
Abstract: Contemporary family law and marriage law in the United States have been criticized by communitarian scholars and others as being too focused on individuals and individual fulfillment. These critiques make some valid points. It is also important, however, to emphasize that contemporary marriage law, for the first time, presents a model of equality and of reciprocal obligations. The Article articulates a broad framework of the functions of family and marriage law. It applies both this framework and the communitarian critique of family law to the issue of same-gender marriage. This analysis leads to the conclusion that same-gender marriage should be recognized. Arguments against same-gender marriage, discussed in the Article, contribute to the “atomistic” focus of contemporary family law.
Two people together is a work heroic in its ordinariness.
—Adrienne Rich, Twenty-One Love Poems, in The Dream of a Common Language (1978).
The current debate about whether same-gender couples should have access to civil marriage ties in with larger discussions about the general direction of family law in the United States. Several communi[*PG266]tarian1 scholars in the family law area, including Mary Ann Glendon,2 Carl Schneider,3 and Bruce Hafen4 have focused on the ways in which family law has been retreating from duties and responsibilities, and increasingly has become focused rather exclusively on individuals and individual rights.5 They have expressed concern that this atomistic [*PG267]focus has resulted in what Hafen has called a “waning of belonging.”6 This Article will explore the following proposition: if we agree with scholars such as Glendon, Schneider, and Hafen that family law’s increased orientation toward individuals has drawbacks, and that the state should have a role in fostering positive connections between people, then we must conclude that marriage by couples of the same gender should be allowed.7
The Article begins by reviewing, in Part I, various influential ideas about aspects of family law that have been articulated by Glendon and Schneider. Specifically, Schneider’s discussion of the five functions of family law (protective, facilitative, dispute resolution, expressive, and channelling) and Glendon’s more detailed discussion of the expressive function of family law are outlined.8 These ideas will serve as a framework, in Part III, for discussing the exclusion from marriage of same-gender couples.
Part II.A reviews some of these scholars’ critical observations, as well as the observations of Hafen, concerning the individual focus of twentieth century changes in family and marriage law. Their analysis is termed the “atomism critique.”9 Part II.B responds to the atomism critique specifically as it relates to marriage and marriage law. It finds that the critics’ account raises legitimate issues. The atomism critique, however, understates the positive aspects of contemporary marriage law: for the first time marriage is an anti-individualistic institution in [*PG268]which both members of the couple are now recognized as individuals and owe equal duties and commitments to one another.10 Part II.C briefly reviews some of these scholars’ comments about moral discourse in family law. This theme is termed the “decline of moral discourse” critique. Part II.D responds to this critique, arguing that moral discourse in family law has shifted at least as much as it has diminished.
Part III discusses the significance of the law’s refusal to allow lesbian couples and gay male couples to marry. It argues that the atomism critique, at a general level, leads to a set of reasons for allowing such marriages distinct from the familiar rights-based claims. It further argues that the shift in moral concerns that has taken place in family law calls for recognition of such marriages.
The discussion in Part III is structured in terms of the various functions of family law as outlined by Schneider and Glendon. The expressive message sent by the law is that lesbians and gay men are essentially lone, atomistic individuals.11 This story told by the law is false, because gay and lesbian people do have intimate, long-term relationships that are both fulfilling for them and good for society.12 Gay male and lesbian couples by and large are left “outside the law,”13 without the framework offered by legal marriage through which to order their relationships.14 Marriage can promote and support constructive connections between people and can counteract the “waning of belonging.”15
Part III also describes how family law largely fails to perform its instrumental functions of facilitation, protection, and dispute resolution for coupled lesbians and gay men, and argues that if marriage [*PG269]was allowed it could more effectively fulfill these functions.16 Family law’s channelling function tries to funnel lesbian and gay people into heterosexual marriage or independent existence.17 There is no valid reason for the current channelling that excludes gay men and lesbians from marriage; having a channelling option of marriage would be positive for society as a whole.18
Finally, Part IV discusses some arguments why such marriages nonetheless should not be allowed, such as the argument that the quest for marriage by same-gender couples is actually a retreat from marriage,19 the argument that heterosexual marriage has greater potential for benefiting individuals and society than does same-gender marriage,20 and the argument that gay men and lesbians seeking marriage are actually repudiating morality by doing so.21 These arguments lack merit, particularly when considered in light of the preceding analysis. Indeed, refusing to allow marriage by same-gender couples furthers the trend toward atomization.
It is important to bear in mind that there is no consensus even as to what family law is22 and that there are basic issues in the field about what constitutes a family.23 As Bruce Hafen has noted, “[f]amily law [*PG270]has always been longer on practice than on theory.”24 There is no overarching theory of family law, and there is likewise no overarching theory of family law for gay men and lesbians.25 However, the scholarly work outlined below concerning the various functions of family law provides an analytically useful framework for discussion.
Carl Schneider has written that there are five functions of family law:26 the protective function, the facilitative function, the dispute resolution function, the expressive function, and the channelling function.27 In his fascinating article entitled The Channelling Function in Family Law,28 he outlines each of these functions. Regarding the protective function, he states: “[o]ne of law’s most basic duties is to protect citizens against harm done them by other citizens. This means protecting people from physical harm, as the law of spouse and child abuse attempts to do, and from non-physical harms, especially economic wrongs and psychological injuries.”29 The second function “is to help people organize their lives and affairs in the ways they prefer. Family law performs this ‘facilitative’ function by offering people the law’s services in entering and enforcing contracts, by giving legal effect to their private arrangements.”30 The third function “is to help people resolve disputes.”31 The current law of divorce “exemplifies family law’s ‘arbitral’ function, since today’s divorce courts primarily adjudicate conflicting claims to marital property, alimony, and child custody.”32
The law’s “expressive” function is also important to Schneider and other scholars.33 Schneider writes that this fourth, expressive, [*PG271]function, discussed in more detail in Part I.B, “works by deploying the law’s power to impart ideas through words and symbols.”34 The final function listed by Schneider is the channelling function. In the channelling function, “the law creates or (more often) supports social institutions which are thought to serve socially desirable ends.”35 The channelling function works partly as a way of performing law’s protective, facilitative, and dispute resolution functions, but the channelling function is also something more.36 To Schneider, the channelling function has several tasks: first to recruit, mold, and sustain social institutions, and second to channel people into institutions.37 It generally works by indirect means, such as by recognizing and endorsing institutions, rewarding participation in some institutions, disfavoring competing institutions, and penalizing non-use of particular institutions.38 It has an efficiency component,39 so that people entering an institution do not have to invent all the rules from scratch, and people outside that institution can have a clear understanding of the rules governing those within the institution.40
Schneider uses the example of the laws surrounding corporations41 and marriage42 to describe the channelling function. According to Schneider, the advantages of institutions in family law are illuminated by situations involving their absence, such as stepparent situations.43 Channelling institutions “set bright lines which establish for all concerned what people’s status is. They make it easier for people to predict the consequences of their own acts. Further, they pro[*PG272]tect people from intrusive governmental inquiries.”44 He uses Marvin v. Marvin,45 the famous California Supreme Court case involving implied contracts and equitable remedies for unmarried opposite-sex partners who break up, to illustrate the costs, unpredictability, and intrusion that can come from case-by-case inquiry.46 Channelling’s institutions “necessarily have normative components and thus to some degree favor one such vision over the rest.”47 Schneider notes that it is extremely difficult to measure and analyze data pertinent to family law issues, and thus it is difficult to measure the success of any particular program or set of laws.48 These functions of family law will be further discussed in Part III below in relation to marriage by same-gender couples.
Mary Ann Glendon, like many others, has emphasized law’s rhetorical, expressive functions.49 She notes in the introduction to her study comparing abortion and divorce law in the United States and Western Europe that law, “in addition to all the other things it does, tells stories about the culture that helped to shape it and which it in turn helps to shape: stories about who we are, where we came from, and where we are going.”50 She writes:
Indeed, it may be that law affects our lives at least as much by these stories as it does by the specific rules, standards, institutions, and procedures of which it is composed. Thus it is not an unworthy task for scholars to ask how law interprets the world around it, what analogies and images it employs, [*PG273]what segments of history and what aspects of human experience it treats as relevant.51
Quoting James Boyd White, Glendon states that law is “‘an element in the perpetual remaking of the language and the culture that determines . . . who we are as individuals and as a society.”52 In the context of divorce and abortion law, she asks, “[w]hat stories are being told in these bodies of law at the present time? How do these stories affect what issues are raised and treated as important and which are excluded from discussion or perhaps even obscured from view? . . . What sorts of meaning is family law creating and what sort of society is it helping to constitute?”53 These questions will be considered as they relate to marriage of same-gender couples in Part III.A.
It is a truism that the law pertaining to marriage and families in the United States has changed dramatically over the past fifty years. As Glendon notes, changes in marriage and family law are “but an aspect of the fact that society itself is in flux.”54 Marriage, families, and the law concerning them have changed significantly throughout recorded history.55 “Over the centuries, family behavior and ideas about marriage and family life have undergone constant fluctuation.”56 In the past, the financial and procreative aspects of marriage were central features of marriage; now, the affective aspects are seen as central to its meaning.57 This section broadly focuses on various developments and how they have been viewed in the work of Glendon, Schneider, and Hafen. As these scholars note, the developments in this field are complex and at times contradictory, and thus any attempt at system[*PG274]atic discussion runs the risk of being unduly reductionistic.58 The major critique this Article will discuss and respond to is the idea that family law has become too centered on individuals and their rights: the atomism critique.59 It will also discuss and respond to the idea that family law has retreated from concerns with morality.60
One prominent theme in these scholars’ work is that marriage and family law have become too focused on individuals, their self-fulfillment, and their rights.61 In The Transformation of Family Law, Glendon states:
[T]he legal imagery of separateness and independence [in U.S. family law] contrasts everywhere with the way most functioning families operate and with the circumstances of mothers and young children in both intact and broken homes. Yet the law holds self-sufficiency up as an ideal, suggesting that dependency is somehow degrading, and implicitly denying the importance of human intersubjectivity.62
American marriage ideology, to Glendon, is that “marriage is a relationship that exists primarily for the fulfillment of the individual spouses. If it ceases to perform this function, no one is to blame and either spouse may terminate it at will.”63 According to Glendon in her comparative study of abortion and divorce in the U.S. and Western Europe, “[m]ore than any other country among those examined here, the United States has accepted the idea of no-fault, no-responsibility divorce.”64 Divorce law “carries a powerful ideology, [*PG275]sending out distinctive messages about commitment, responsibility and dependency.”65 To her, the disjunction between the model of autonomous individuals, on the one hand, and the actual dependence of young children and their caretakers, on the other hand, has tremendous negative consequences, since young children and their caretakers so often end up in poverty after divorce.66
Schneider sounds a similar note regarding contemporary U.S. marriage. He states that “[m]arriage is ever more seen as a forum for satisfying human needs, as part of the search for psychological health and personal fulfillment. . . . This reconceptualization of marriage in therapeutic terms . . . tends to shift the focus of concern from duties to others to duties to oneself.”67 He further states that “[i]f the primary duty is to oneself, independence becomes a virtue; dependence a fault.”68 For example, Schneider notes that “[h]istorically, spouses were admired for sacrificing themselves for each other”69 but finds that is no longer the case.70
Bruce Hafen frames individualist autonomy as opposing the idea of belonging in approaching recent family law history.71 He observes that attitudes toward marriage have been shifting from “familistic”72 to [*PG276]contractual,73 and that family members increasingly tend to see themselves primarily as individuals rather than as parts of a larger group.74 He claims that “individualistic civil liberties approaches” have been “transfer[red] to the divorce context,”75 with attendant problems for the spouse who does not want the marriage to terminate.76 Hafen notes that law and other behavior-oriented disciplines such as psychotherapy and theology “are less likely to reinforce any serious hope for the ideal of enduring relationships of commitment.”77
Hafen eloquently describes the importance of connections between people: “ours is the age of the waning of belonging.”78 In a section of an article that he describes as “consciously anecdotal and interdisciplinary,”79 he writes about how “belonging”-type relationships demand that we draw on internal resources that might not otherwise be tapped:
The innate human intuition to belong occurs, and is often fulfilled, at the most fundamental levels of both human experience and aspiration. . . . Without a sense of belonging, we may never know—and never see the effects of—the reservoirs of strength and compassion we carry within ourselves. That is a loss not only to ourselves, but a major loss to society.80
In an earlier article, he emphasizes the commitment typified by marriage: “the formal commitment of marriage is . . . the basis of stable expectations in personal relationships. The willingness to marry permits important legal and personal assumptions to arise about one’s [*PG277]intentions.”81 He also contrasts legal marriage with unmarried cohabitation: “legal marriage is more likely than is unmarried cohabitation to encourage such personal willingness to labor and ‘invest’ in relationships with other people, whether child or adult.”82 He also notes that the range of “legally and socially acceptable” family forms has widened in the twentieth century to include “working mothers, families headed by women, families in which fathers share housework, and families without children.”83 He also posits that “marriage alone plays a critical role in the democratic structure by interposing a significant legal entity between the individual and the state.”84 He hopes that in the future, “family law will find ways to sing more clearly the melody of belonging.”85
One of the ways in which family and marriage law have become more individual-oriented, as many have observed, is through the gradual move from status to contract.86 Glendon, Schneider, and [*PG278]Hafen all find problems with the introduction of a contractual approach to family law. Hafen suggests that people invest less in their family relationships if a contractual approach is used.87 Glendon notes that prenuptial agreements “are nearly always used to insulate the property of the more powerful spouse, who in most cases will have the better bargaining position.”88 And Schneider concludes that “contract law is primarily seen as a way of relieving people of obligations the laws and social norms have historically embodied.”89
Glendon and Schneider both discuss how the law of marriage and divorce has developed toward a model that does not recognize dependency or connections between human beings in a constructive way. To them and many others including many feminist scholars,90 this is a serious shortcoming of modern marriage and family law.91 Glendon notes that families still provide much non-market care for the helpless (young, old, and disabled), despite the shortage of caregivers.92 Law should recognize this and yet does not, since it imposes an unrealistic model of autonomy. Family law in the United States should more effectively take account of actual relationships of dependency, for example when there are small children, according to Glendon, [*PG279]Schneider, and others. These important observations will be linked with the law concerning same-gender couples in Part III.93
Glendon, Schneider, and Hafen rightly highlight the dominant trend in the changes in laws over the last fifty years concerning marriage, divorce, and family as moving toward recognizing individuals as individuals, with individual rights.94 For example, “nonfault divorce,” to use Glendon’s term,95 has made it easier for a spouse to leave a marriage if the spouse is unhappy in the marriage, even if the other spouse does not want the marriage to end.96 Enforcement of premarital agreements concerning property has increased, which allows people to tailor their post-divorce economic arrangements individually.97 Developments such as the abrogation of interspousal tort immunity98 and the availability of protective orders for domestic violence99 recognize members of married couples as individuals in new ways. Glendon and Schneider also acknowledge that people may live their lives in more interconnected and generous ways than law or their own lan[*PG280]guage would indicate.100 Also, as Hafen notes, many people tend to see permanent commitment as the ideal.101
Nonetheless, to some extent, Glendon, Schneider, and Hafen overstate the extent to which marriage has become simply an institution for self-fulfillment. To a large extent, the old non-reciprocal duties102 of civil marriage103 have been replaced by matching, reciprocal duties.104 New family medical leave statutes recognize connections between people that were previously ignored by law.105 “The story told by law”106 about marriage now is not that it is simply an institution for [*PG281]individual self-fulfillment, but rather that it is an institution based on equality and mutual commitment.107
For example, at common law, the wife owed a duty to provide companionship and services to the husband, but the husband owed no such duty to the wife.108 Thus, the husband could sue a third party for loss of her consortium, but she could not sue for loss of his consortium because she had no right to it. The common law and statutes, largely in the 1970s, came to provide that each spouse had a duty to provide services and companionship to the other, so that each spouse could sue for the loss of the other’s companionship.109 The law could have developed so that neither spouse had a duty to provide such services and companionship to the other, but it did not.
Similarly, at common law and well into this century, the husband owed a duty of support to the wife as long as she lived with him, but she had no duty to support the husband (even if she could do so).110 [*PG282]The duty of support was not absolute. For example, according to a 1932 commentator, “[t]here is no question that a wife who is without justification living apart from her husband is not entitled to support.”111 Now the duty of support extends to both spouses.112 Under current law, each owes a duty to support the other during the marriage.113 Some statutes specify that the duty is owed whether or not the spouses are living together.114 Thus, not only has the duty to support been extended to both spouses, but in some instances it is less conditional than it was in the past. As with the example of consortium, the law could have developed in such a way that neither owed such a duty, but it did not.115
One interesting area where a non-reciprocal duty was not extended to both spouses in recent marriage reform is the duty to follow a spouse. It appears that generally under the common law, as long as a husband performed his duty of support, he could determine the wife’s place of residence.116 For example, until it was struck down in 1983, a Louisiana law stated, “The wife is bound to live with her hus[*PG283]band and to follow him wherever he chooses to reside: the husband is obligated to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.”117 The Louisiana Court of Appeals held that the gender-specific requirement that the wife follow the husband was unconstitutional.118 Now it appears that neither spouse owes a duty to follow the other.119 It needs no citation to assert that many married couples with two wage-earners have difficulty deciding where to live.
Generally, duties within marriage, where practical, have been extended to both spouses. Regarding the duty to follow a spouse, it would not be practical for obvious reasons to extend this to both spouses, and it has not been done. While duties within ongoing marriages are not directly enforceable, this is not new.120
Although both members of the couple now are recognized as individuals by the law, that does not mean that marriage has become simply an institution for individual self-fulfillment.121 As Robin West writes, “Marriage just is, through and through, anti-individualistic. That is precisely its moral strength, and no small measure of its immense appeal.”122 Marriage law for the first time presents men and women with a model of mutual duties owed by each member of the couple to the other. Marriage law has changed from an explicitly patriarchal model where the person who lacked legal identity, and who did not count as an individual, was the wife.123
[*PG284] As Katharine Baker has stated, “[t]raditionally, family relationships were treated as property relationships, with the husband and father essentially ‘owning’ his wife and children.”124 As Baker notes, “[t]he abolition of coverture and the Married Women’s Property Acts helped alleviate some of the more blatantly subordinating effects of marriage for women.”125 Nonetheless, as Reva Siegel has explained in detail, the legal system resisted legal reforms aimed at improving wives’ economic status, well into this century.126 While marriage is now an institution of formal equality, various factors lead to continuing concerns about women’s status in marriage.127
Even the idea of women being autonomous individuals is relatively new. While white women and black women historically have been denied individual autonomy (in very different ways), white men’s individual autonomy has been widely encouraged.128 As Baker observes, “the values associated with individualism and autonomy are values that many men may already have, but that women may [*PG285]need.”129 Thus, criticizing the recent individual orientation of family law and marriage has undertones of targeting women’s newfound autonomy while accepting without question the autonomy which for many white men has been there all along.130
In discussing marriage, Schneider and Hafen tend to give only passing attention to the patterns of gender subordination that were an explicit and integral part of marriage law until recently. For example, while Schneider notes that “historically, spouses were admired for sacrificing themselves for each other,”131 he does not deal with the gender-based disparity of “sacrifice” expected in “traditional” marriage, and appears to assume that the “sacrifice” expected of each spouse was the same or equivalent.132 It was not.133
In short, the changes in the law of marriage over the past fifty years and longer have created an ideal model of matching duty and equality, of commitment between spouses.134 The changes in marriage law are not just about loosening bonds between people, although there is that aspect.135 The recent law of marriage presents a model, not just of individual fulfillment or gratification, but of commitment to a truly shared, interdependent life.
Another related theme in the work of these scholars is that moral discourse in family law has declined and that family law has become separated from moral concerns. Schneider’s important 1985 article, Moral Discourse and the Transformation of Family Law136 argues that there is a powerful “tendency toward diminished moral discourse and transferred moral responsibility in family law.”137 He believes that this thesis is supported by no-fault divorce laws,138 by child custody laws where custody is no longer supposed to be awarded on the basis of a parent’s sexual behavior,139 by increased enforcement of interspousal contracts,140 and by other legal phenomena.141 The shift in his view was related to a number of factors; to a large extent, he believes, moral discourse has been replaced by psychological discourse.142 Schneider later writes, “for some people and in some ways, morals—and thus moral discourse—has become a diminished and disfavored category not just in law, but in life, and . . . this change has helped impel the law away from moral discourse.”143 Schneider also notes an increased skepticism toward rules and broad principles and a professed, al[*PG287]though incomplete, moral relativism in students such that they are unwilling to make moral judgments about family matters openly.144
Glendon notes that in the United States, “secular family . . . law substantially refrains from articulating a common morality.”145 Glendon claims that family law:
[H]as been influenced by new ideas, not about families, but about law and morality. Such ideas include the problematic notions that courts and legislatures should not attempt to impose “values” (except for equality, individual liberty and tolerance). . . . The result is often that other normative legal propositions have tended to be phased out, even when they are quite widely shared.146
Hafen also seems to support the idea that moral discourse has declined.147 He notes that “the legal system is generally less confident about the normative posture of many former notions of morality and ideal behavior, even in the context of criminal law.”148 Without being very specific,149 these authors convey an impression of some nostalgia for the passed time when the rules were clearer and the legal system was more confident about rules and morality.150
Glendon, Schneider, and Hafen are correct that courts “are now less likely to rely on moralistic language or moral judgments in the entire range of family law issues, from divorce to child custody to child neglect,”151 and in that sense moral discourse certainly has declined. This does not mean, however, that moral concerns have been exiled from family law.152 Instead, moral values different from those that grounded family law in the fault divorce era increasingly animate family law.153 These “moral values are grounded in equality, fairness, commitment, and nurturance”154 and are explored in recent scholarship, discussed in this section.
For example, some recent developments in family law, such as the societal recognition of domestic violence and the jettisoning of archaic rules that discriminated against women, can be seen as based on moral values that view violence within families and discrimination against women as wrong. As Naomi Cahn writes in an instructive review essay, “claims [about the decline of moral discourse] fail to recognize the ‘moral values’ underlying [recent] changes in family law.”155
Cahn identifies a “new Family Morality” which “addresses family values, promotes acceptance of broader definitions of the family, and draws on notions of fairness and equality.”156 Cahn argues that:
[*PG289][t]he shift away from traditional moral discourse and toward private contracting does not indicate diminished moral discourse in family law; instead, this shift represents only one of the many different trends within family law. The new family morality recognizes that there is, simultaneously, an increase in new types of moral discourse in some of those same areas, as well as the inevitable tension between private contracting and status based assumptions.157
Katharine Silbaugh, similarly, observes that “moral values in family law have shifted toward equity and away from older moral values, such as marital fault defined as infidelity.”158 Lee Teitelbaum has argued that the decline in moral discourse seems to follow from the abandonment of “a moral theory to which the use of expressly moralistic language is expressly suited,”159 but does not reflect “a wholesale abandonment of morality.”160 He writes of the inadequacy of rights talk in family law, and urges consideration of ways “to talk about families as relationships.”161
Regan takes the position that family law should promote “a substantive moral vision of commitment and responsibility.”162 Another scholar with strong moral concerns, Martha Minow, emphasizes issues of obligation and moral responsibility.163 She discusses duties at length.164 She endorses a “liberal approach to family membership but a strict view of family obligation.”165 This scholarship shows that con[*PG290]cerns with moral issues in family law remain strong, although these concerns often focus on different issues than those considered overriding in the past.
Katharine Bartlett acknowledges problems and challenges faced by families and articulates a “family-enabling model of reform,”166 but avoids using moral terminology. She writes:
Family law is soaked in moral judgments that both reinforce the law and are reinforced by it. At some level, the question is not whether family law should reflect moral principles but what those principles will be. When it comes to the moral principles the state should be trying to reinforce, I favor respect or moral accommodation for a broad range of family forms that are capable of providing nurturing environments to its members.167
She states that “[i]n today’s debates over the family, however, speaking in broad moral terms is too readily associated with one set of specific, conservative values to the exclusion of other values.”168 Since her model accepts a wide range of family types, she “usually find[s] moral terminology more confusing than helpful and [tries] to avoid it.”169 She argues that strengthening two-parent families is a valid policy goal since such families tend to be better for children, but that family-standardizing reform proposals such as proposals to restrict grounds for divorce are likely to have negative consequences for women and children.170
Family law issues, like other legal issues, relate to moral questions. Family law’s moral discourse has diminished in some respects and in some contexts. But in important ways, the moral concerns of family law have not simply declined but rather have shifted to concerns with fairness, equality, commitment and nurturing.171
Many lesbians and gay men are in long-term, committed couple relationships172 and many would marry if they were not prohibited from doing so.173 Information from surveys of unmarried partners has shown that about 1.7 million unmarried households “are likely to be headed by same-sex couples.”174 Lesbian and gay male couples in the United States have been trying to obtain recognition of their unions as legal marriages for over twenty-five years.175 Some courts in recent years have shown increased receptivity to such claims.176 Most notably, [*PG292]the Vermont Supreme Court recently held that under the Vermont constitution, the state could not deny to same-sex couples “the common benefit, protection and security that Vermont law provides opposite-sex married couples.”177 The idea of marriage by same-gender couples has encountered major legislative resistance, with numerous states passing bans on marriage by same-gender couples in the past five years.178 This section does not review the territory of whether such statutes are constitutional.179 It instead examines the significance of the exclusion from marriage and argues that marriage of same-gender couples can foster positive connections between people and should be allowed.180
The “story told by law”181 about lesbian and gay coupled, committed relationships by the exclusion from marriage182 is that they do not exist or do not count.183 Law tells all people that lesbians and gay men are lone individuals184 despite the fact that they have “familistic” rela[*PG294]tionships.185 This story is both false and stigmatizing.186 The coupled, committed relationships of lesbians and gay men are, as noted above, “outside the law.”187 When such relationships end, through death or breakup, it is as though they never existed. While the law is not uniform, there are few exceptions to this principle.188 The intersubjectivity of lesbian and gay male couples is unrecognized, no matter how long they have been together. Their interdependence, or the dependence of one on another for health or other reasons, generally is ignored. Since marriage is the quintessential, legally recognized way for two adults to “belong” to one another, refusing to recognize committed, coupled gay relationships consigns the members of such relationships to the impossibility of that kind of “belonging.”189 It thus prevents gay couples from attaining what benefits may come from such belonging and also deprives society of the benefits that may come from belonging. As Hafen claims, without “belonging, we may [*PG295]never know . . . the reservoirs of strength and compassion we carry within ourselves. That is a loss not only to ourselves, but a major loss to society.”190 While family law, as Glendon points out, in its focus on individuals unfortunately often ignores actual intersubjectivity and interdependence, this is even more true with regard to gay people.191
“Familistic relationships,” in work quoted by Hafen, “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.”192 This form of relationship, with “commitments of mutual attachment [that] transcend self-interest,” is not limited to heterosexual couples.193 Yet law generally ignores support, dependency, commitments, and “familistic behavior” between members of same-gender couples, as the following examples suggest.
The facts of In re Guardianship of Sharon Kowalski, provide an excellent illustration.194 At the age of 27, Sharon Kowalski suffered severe brain injuries in a car accident. As a result of the accident, she needed to use a wheelchair for transportation and her memory and ability to speak were impaired.195 At the time of the accident, she had been living, as a couple, with her lesbian partner, Karen Thompson, for four years.196 They had exchanged rings and named each other as beneficiaries on their insurance policies, but Sharon’s parents were not aware of Sharon’s lesbian relationship.197
After the accident, a dispute began concerning guardianship of Sharon between Sharon’s parents and Karen.198 Eventually, in 1991, eight years after Sharon’s car accident, Karen was appointed Sharon’s [*PG296]guardian. Karen Thompson’s continuing devotion to her disabled partner took many forms. Karen actively worked with Sharon three or more days a week on Sharon’s therapy and daily skills. Karen was the only person willing to care for Sharon outside an institution, and she built a completely handicap-accessible home in the hope that Sharon could live there.199 Karen was the person best able to motivate Sharon with her therapy.200 The nitty-gritty details are striking. Karen was often “the only one who can clean Sharon’s mouth and teeth, since Sharon is apparently highly sensitive to invasion of her mouth.”201 By contrast, none of Sharon’s biological relatives could care for Sharon outside an institution.202 The actions taken by Karen Thompson with respect to her partner demonstrate the existence of a “familistic” relationship. Paraphrasing Hafen, through the mutually belonging relationship between Karen and Sharon, Karen apparently found “reservoirs of strength and compassion” within herself that she might not have known she had; society as well as Sharon have benefited.203
The situation of the couples in Vermont who are seeking to marry also reflects devotion and commitment. For example, Lois Farnham and Holly Puterbaugh, two of the plaintiffs in Baker v. Vermont,204 have been together as a couple for more than twenty-five years.205 Stan Baker and his partner Peter Harrigan, also plaintiffs in Baker v. Vermont, have been together as a couple for over four years.206
An example of the state’s refusal to recognize any kind of connections between gay people is the Arizona Department of Corrections policy on contact between relatives during prison visitation.207 It allows for a “brief period of kissing and embracing for relatives and immediate family at the start and end of each visit,” but forbids such [*PG297]contact between same-sex partners.208 When the policy was questioned, the Arizona Director of Corrections justified it based on the state’s ban on same-sex marriages and a statute promoting strong families and family values.209 The Director wrote that “any policy condoning homosexual activity at visitation, amid families and children, would be contrary to state law.”210 The Director also wrote that “the Department recognizes the emotional hardships associated with having a loved one incarcerated and the impact imprisonment has on a family. Consequently, the Department allows limited contact between relatives during visitation.”211 However, to allow gay couples to hug or kiss goodbye would be to “condone homosexual activity.” The story told by the state is that it is not an emotional hardship for a gay or lesbian non-incarcerated person to have his or her loved one incarcerated if the loved one is of the same gender. The state sees the prisoner as neither a “loved one” nor a relative, so the relationship simply does not count.212
In re Estate of Hall is an instructive example of law refusing to recognize commitment and dependence.213 Hall and petitioner went through a private marriage ceremony. They commingled their funds. “They were dependent on each other for the maintenance and upkeep of their home as well as daily living expenses and necessities of life.”214 Their financial obligations “also included the financial support of Hall’s sister and Hall’s minor son.”215 When Hall died intestate, petitioner unsuccessfully sought a surviving spouse share under Illinois law. The holding denying relief to petitioner is less important than the facts—deep commitment demonstrated by a private marriage, dependence, financial support of each other and of others.216[*PG298] “Familistic” relationships and relationships of mutual dependence and support between coupled adults are good for society, as well as the members of the relationship, and should be recognized and supported by law. It is not as if every long-term committed same-gender relationship necessarily involves “shared commitments of mutual attachment [that] transcend self-interest.”217 Nor does every marriage.218 Many same-gender relationships, however, have these qualities.219 The story told by the law that such relationships do not exist is not true and leaves the law at a dangerous disconnect from people’s lives.220 It also stigmatizes gay and lesbian people.221
The story of non-existence told by law has immense practical implications for gay and lesbian couples, discussed in more detail in Parts III.B and C below. The absence of the legal ordering provided by marriage (and divorce) means that lesbian and gay male couples can not rely on the default mechanisms of marriage to order their lives.222 They live their lives as most couples do, having various under[*PG299]standings that may change over time but no written contracts, expecting never to become disabled, or break up, and not planning for death.223 If one partner dies without a will, this results in the application of state intestacy laws, which do not recognize same-gender partners.224 If one partner becomes disabled and needs a guardian, the other partner will not necessarily be recognized as a guardian.225 If such a couple breaks up and a member or members of the couple has property, legal confusion can result about who owns what.226 Disputes between ex-partners may result in painfully intrusive, expensive, time-consuming, and unpredictable litigation.227 Both Glendon and Schneider have noted the invasive, unpredictable, and unsatisfactory character of the Marvin v. Marvin litigation for unmarried heterosexual couples;228 the same problems arise for gay male and lesbian couples.
The story law should be telling is that coupled relationships between adults of the same gender involving “shared commitments of mutual attachment [that] transcend self-interest”229 are civil marriages [*PG300]if the members of the couple choose to make them so.230 Concerns about the increased contractualization or individual orientation of family law, and about individuals making only limited investments in relationships, should lead to support of marriage by same-gender couples. Law should encourage members of married couples to be responsible for one another and for their dependents.231 Marriage, whether between opposite-gender or same-gender couples, opposes atomism and recognizes positive, beneficial connections between members of a couple. This is a very good thing, especially in a society in which people (as Glendon, Schneider, Hafen, and others warn),232 may be becoming increasingly self-oriented, less generous and less connected to one another.
Legally recognized civil marriage is the most practical boundary or shorthand for this goal of expressing a shared commitment,233 because as Hafen notes, “a boundary based on the degree of commitment to a relationship or individuals’ expectations regarding a relationship’s permanence would require intolerable inquiries into the most private realm of individuals’ lives.”234
Moreover, in accord with the “new Family Morality” as outlined by Cahn,235 which is based on moral values of “equity, fairness, commitment and nurturance,”236 the expressive message that law should be sending is that coupled, intimate, same-gender, committed relationships exist and are positive for the individuals involved as well as for society. Allowing such marriage does not require a radical redefinition of the family, but rather simply a fair expansion of those [*PG301]entitled to marry.237 As Regan says in support of marriage by same-gender couples, “the moral aspiration that marriage has expressed is not heterosexual intimacy per se, but the more general vision of responsibility based on the cultivation of a relational sense of identity.”238
Three of the most important functions of family law are the protective, facilitative, and dispute resolution functions.239 By excluding gay people from marriage, the law performs these functions less effectively than if lesbian and gay male couples were allowed to marry.
The facilitative function “help[s] people organize their lives and affairs in the ways they prefer.”240 Many of the laws concerning marriage perform a facilitative function.241 These range widely. For example, the Family and Medical Leave Act requires employers to offer unpaid leave of up to twelve weeks annually to a qualified employee to care for a spouse with a serious health problem.242 Leave is also allowed for an employee to care for parents and children but not for anyone else. Taxation provisions allow spouses to transfer property between themselves without subjecting them to gift tax.243 These types of provisions facilitate couples’ financial and personal bonds, encouraging mutual care, dependence, and support. Lesbian and gay male couples are left out of these facilitative provisions.
[*PG302] But the facilitative function, for Schneider, also is concerned with individual ordering. As Schneider notes, law’s facilitative function “offer[s] people the law’s services in entering and enforcing contracts, by giving legal effect to their private arrangements.”244
Given the exclusion from marriage, gay male and lesbian couples can attempt to order their material arrangements through individual devices such as wills or written contracts and try to rely on family law’s facilitative function in enforcing contracts and giving effect to intentions. Certainly a will is a good idea, but many people can not afford the usual legal fees, and wills are sometimes challenged by family members.245 Contracts between members of gay couples may or may not be enforceable.246 Moreover, as Craig Christensen has shown, the panoply of legal responsibilities and benefits afforded by marriage can not be constructed from individuals’ contracts.247
In addition, as Hafen, Schneider, Glendon, and others have argued,248 the move to contract in family law is not an unmitigated good.249 Ordering intimate relationships through bargained-for contracts may protect the more powerful person250 and encourage the [*PG303]parties to think in self-oriented, rather than familistic terms.251 Moreover, it is impractical and undesirable for gay male and lesbian couples to have to order their lives together by written contracts.252 Thus, this aspect of the facilitative function does not substitute for marriage.
Regarding the protective function, several things should be acknowledged. First, family law in general does not fulfill the protective function particularly well.253 Second, most states’ laws about domestic violence, a classic example of the current protective function,254 do not exclude gay or lesbian couples.255 Reports exist that gay and lesbian victims of domestic violence often do not get effective help through the court system even when the laws cover their situation.256 Perhaps marriage by same-gender couples would persuade judges and other court personnel to take such abuse more seriously.257
[*PG304] Another aspect of the protective function is “protecting people from economic harms and psychological injuries.”258 State intervention to protect from such injuries in an ongoing marriage is, and should be, rare.259 Current divorce law is not an inspiring model of protections against economic harms or psychological injuries.260 Nonetheless, the mechanisms of alimony and equitable distribution of property provide the potential for some protection, at least, for the economically weaker party.261 By contrast, where there is no marriage, there is no mechanism to seek long-term or short-term support for a dependent party when a relationship ends. There is no practical mechanism to distribute real property between the title holder and the other partner.262
Regarding dispute resolution, procedural and substantive assistance are both lacking. The vast majority of states now have laws that either require or recommend mediation for family disputes.263 Family law is the area in which mediation is most frequently mandated.264 No mediation process exists for property or custody disputes between same-gender couples, and the legal principles available for married couples to deal with inequality in ownership of property when a relationship breaks up are absent. The legal system should be available if [*PG305]a relationship breaks up to ensure that the less powerful party is protected.265
According to Schneider, the channelling function works through social institutions, “which are thought to serve desirable ends,” such as marriage.266 The institutions used in channelling “necessarily have normative components.”267 Not being allowed to be part of an institution is a channelling mechanism in itself; being treated as a legal stranger to one’s mate is an example of law’s channelling function in action.268
Channelling institutions create clear boundaries and impose expectations, providing useful models for people and sparing people the necessity of making up rules and institutions from scratch.269 To illustrate this, Schneider invokes the image of “two nineteen-year-olds living in a state of nature who find themselves in love,” and discusses how marriage customs and law in the mid-twentieth century would guide, but not coerce, them.270 He does not identify the race or gender of the nineteen-year-olds. But he seems to be assuming that they are of different genders, since two nineteen-year-olds of the same gender who found themselves in love in the mid-twentieth century would not have been provided guidance from law or custom about what to do to live out their love.271 He also seems to be assuming that [*PG306]they are of the same race, because an interracial couple in the mid-1950s probably could not marry legally, and even if they could, custom would impose severe sanctions on the couple.272 Channelling thus works not to urge any two hypothetical nineteen-year-olds into the tried-and-true positive institution of marriage, but only certain nineteen-year-olds deemed by law and custom to be suitable for one another. This is not very different from what Schneider says the channelling function does,273 but it illustrates that examples of channelling which are assumed at first to represent general guidance toward a general good actually may be founded on unspoken but strictly enforced exclusions and coercion.
In discussing the workings of the channelling function, Schneider analogizes marriage to tennis, pointing out that participants in tennis benefit from rules already being in place and that participants [*PG307]who try and make up rules from scratch would be less likely to invent as good a game as that which already exists. “Tennis, in other words, succeeds because it is a shared and well-established institution. Marriage and parenthood benefit from that same fact.”274 This analogy highlights the benefit of having rules, which of course are considerable,275 but provides no way of thinking about whether the actual rules are fair or otherwise beneficial.276 Schneider is correct to note that family law institutions have a normative component and inevitably channel (or attempt to channel) people in certain directions.277
The structure of excluding gay male and lesbian couples from marriage may be seen as trying to channel people who have a same-gender sexual orientation into either marrying someone of the opposite gender or into spending their lives without a mate. Regarding the first option, as Mark Strasser points out, “it is unlikely that a marriage between an individual with a same-sex orientation and an individual with an opposite-sex orientation would be happy or stable.”278 Unhappy and unstable marriages tend not to be good for the participants or the wider society and are likely to end up as divorces, which can have their own negative consequences.279 Thus, if this is what the channelling function is trying to do, it is not a sensible goal. Regarding the second option, of channelling gay men and lesbians into perpetually single lives, this seems counterproductive given the positive consequences that intimate, stable relationships have for couples, and thus for society as a whole, regardless of gender.280
[*PG308] The current channelling also makes no sense because it treats so differently relationships that are the same or equivalent.281 Intimate, committed, coupled, same-gender relationships should be treated the same by law, in that participants in them should be able to marry, for numerous reasons. First, they are subjectively the same (or equivalent) to the participants. They should be valued for the same reasons that marriages are valued. Various types of marriage relationships are valued in this society.282 As Carlos Ball points out, “the normative value of a committed homosexual relationship is just as high—the affection, the love, the fidelity, the commitment are the same as in a committed heterosexual relationship.”283 In addition to being morally good, long-term intimate dependent or interdependent relationships also can have positive instrumental consequences: they can foster individuals’ stability and health.284 Healthy, happy, stable, supported individuals in turn tend to contribute more to communities than do unhealthy, unhappy individuals. Resource-pooling by couples is helpful for economic independence and stability for the couple (and hence for the community) because of the economies of scale involved. In a committed couple relationship, where one partner becomes ill, the other partner often cares for the ill partner, providing family care that does not need to be provided by the state.285 This benefits both the individuals involved and the state. Moreover, full inclusion of gay couples in society will further full participation by gay people in society which is a worthwhile goal.286 A society where people are disconnected from one another is a society in danger of disinte[*PG309]gration; law plays an important role in furthering and supporting connections between people.287
Gay couples currently are unable to reproduce biologically with one another. Yet this should not be a basis for the law’s current channelling activity.288 The United States Supreme Court has made clear that reproduction is not critical to marriage.289 In Turner v. Safley,290 which dealt with constitutionality of marriage restrictions on prison inmates, the Supreme Court discussed what attributes of marriage remained after taking into account incarceration:
[i]nmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition . . . the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be consummated. Finally, marital status often is a precondition to the receipt of government benefits . . . property rights . . . and other, less tangible benefits.291
[*PG310]Moreover, childless heterosexual couples are recognized as fully married292 as are infertile or elderly couples who marry.293 Many gay couples raise children whether they are from prior relationships or come into the family through adoption or assisted conception.294 As Craig Christensen has shown, marriage would benefit these children.295 We are past the time, if indeed there ever was such a time, when unitary principles can be applied in all circumstances to all marriages.296 The normative goals of marriage generally are furthered by extending marriage to same-gender couples.
Perhaps the idea is that channelling everyone into heterosexual marriage or life without a mate is a good thing because same-gender, intimate, committed, couple relationships are immoral and, therefore, should be discouraged by family law’s mechanisms.297 Same-[*PG311]gender relationships, however, are not immoral and in fact can be normatively good.298 The current channelling of gay people into either perpetually single lives or heterosexual marriage is therefore both counterproductive and destructive, because it discourages normatively good relationships. Family law models that are rooted in moral concerns, such as Bartlett’s, Cahn’s, Minow’s, and Regan’s, all support marriage by same-gender couples.299
Those opposed to marriage by same-gender couples would likely respond that the current story of non-recognition is exactly the “story that should be told by law.” Law should “channel” people into heterosexual marriage. The question remains as to why law should tell this story; why should this channelling be attempted, given all the observations that have been made above? There is a growing literature on this topic.300 This section will discuss several arguments recently made against marriage by same-gender couples,301 and will oppose those [*PG312]arguments with points developed in the preceding section. One is that the effort to broaden access to marriage is actually a retreat from marriage.302 The second is that heterosexual marriage necessarily has greater potential for benefiting individuals and society than does marriage by same-gender couples.303 Third is the argument that efforts to seek same-gender marriage are a repudiation of morality.304
Lynn D. Wardle argues that the effort to extend marriage to same-gender couples actually is an effort to retreat from marriage.305 The couples over the last twenty-nine years who have gone first to town clerk’s offices and then to court to try to get married would dispute this. Contrary to Wardle’s contention, the effort to broaden access to marriage is not an effort to retreat from it. The couples involved are trying to have their intimate, committed relationships recognized by the state through marriage. As Naomi Cahn has pointed out, the efforts to allow same-gender partners to marry “reflect the importance and value of marriage and represent attempts to strengthen, not undermine, the institution.”306 The efforts through the courts have not sought a particular type of marriage, but just access to marriage, with the same responsibilities and rights as everyone else.
Wardle notes that some writers advocating marriage by same-gender couples have called for changing marriage,307 as if that means that they want to retreat from it.308 He cites one writer who argues that “legalizing same-sex unions might even transform marriage into a state divested of its sexist base.”309 Some of the historical sexist basis of [*PG313]marriage has been discussed above,310 and if marriage by same-gender couples makes marriage less sexist, this is a good thing. As Schneider notes, simply because the institution of marriage is “developing, does not mean that [its] normative core will disappear.”311
Loud calls for changing marriage have been heard in our nation’s history. For example, Elizabeth Cady Stanton, in her famous Address to the Legislature of the State of New York, in 1854, stated:
Look at the position of woman as wife. Your laws relating to marriage—founded as they are on the old common law of England, a compound of barbarous usages, but partially modified by progressive civilization—are in open violation of our enlightened ideas of justice, and of the holiest feelings of our nature.312
While advocating radical changes in marriage laws, Stanton was not advocating a retreat from marriage. Marriage and marriage law have been constantly changing, and seemingly fundamental aspects of both have changed.313
Various scholars have argued in recent years that bans on marriage by same-gender couples are gender discrimination.314 Wardle counters this view by claiming that “heterosexual marriage is the oldest gender-equality institution in the law.”315 This statement is difficult—some would say impossible—to reconcile with the history of women’s subordination explicit in marriage laws until recently.316
Wardle then goes on to state that “[t]he requirement that marriage consist of both a man and a woman emphasizes the absolute equality and equal necessity of both sexes for the most fundamental [*PG314]unit of society.”317 Here he seems to narrow the immediately prior claim that “heterosexual marriage” as a whole “is” a gender equality institution, and instead to make the seemingly more modest claim that the man-woman requirement “emphasizes” the “absolute equality” and “equal necessity” of both sexes. However, this statement is also problematic. An “absolute equality” between the sexes can not be “emphasized” if it does not exist in the first place.318 The idea that “traditional” marriage “emphasizes” the “equality” of the sexes makes no sense in view of the history of marriage.319 Moreover, the statement that the man-woman requirement is a way of “emphasizing” the “equal necessity” of both sexes in society’s “most fundamental unit” is simply a way of restating the requirement. In other words, it says that the man-woman requirement is a requirement because it is necessary for the unit. This neither explains nor justifies the requirement itself.320
Moreover, even if heterosexual marriage is a “gender-equality institution,” this does not mean that marriage by same-gender couples is not also a gender-equality institution. Some have argued that marriage between two people of the same gender may be more likely to be a gender-equality institution than heterosexual marriage in view of the relative lack of stereotyped gender roles that people may bring to such marriages.321 It may be that allowing people of the same gender to marry will be more likely to further gender equality than the current restriction does.322
[*PG315] Wardle also takes an absolutist view of the man-woman requirement:
[C]laims for same-sex marriage cannot exist with the belief that there is an inherent, essential nature of marriage or that marriage reflects something fundamental and inherent in the natures of men and women. Nor can the concept that marriage is ordained by God, and has some absolute fixed, immutable characteristics, coexist with belief in same-sex marriage.323
While Wardle and others324 believe a certain kind of marriage is ordained by God, other religious denominations believe that God welcomes marriages by same-gender couples.325 In a society where marriage is a civil institution,326 it is not sufficient to justify the marriage exclusion by asserting that God has defined marriage in a certain way.327
Wardle also claims that marriage by same-gender couples is logically inconsistent with marriage by different-gender couples:
[C]laims for same-sex marriage logically presuppose a rejection of traditional marriage because they are based upon fundamentally incompatible concepts of marriage and humanity . . . . Inevitably claims for same-sex marriage must lead to rejection of traditional male-female marriage that is predicated on an incompatible belief in the inherent natures of humanity and marriage.328
[*PG316]Despite his insistence, there is no reason why claims for marriage by same-gender couples “must lead to a rejection” of “traditional male-female marriage.”329 Same-gender couples who seek to marry in this society are not thereby rejecting or denigrating “traditional male-female marriage.” It does not diminish the rights or responsibilities of male-female married couples to allow same-gender couples to marry.
In sum, the effort to broaden access to civil marriage so that gay male and lesbian couples can marry is simply what it seems to be—an effort to allow such couples to marry. Calls for marriage reform, and changes in marriage laws, recur throughout United States and European history. Allowing gay male and lesbian couples to marry does not affect the rights and responsibilities of heterosexual married couples and does not entail a rejection of heterosexual marriage.
Wardle also argues that there is something inherent in committed relationships between opposite sex couples that makes such relationships more important and worth supporting than relationships between couples of the same gender. He writes “[n]o other companionate relationship provides the same great potential for benefiting individuals and society as the heterosexual covenant union we call marriage and that is why only committed heterosexual unions are given the legal status of marriage.”330 He also claims that “the integration of the universe of gender differences (profound and subtle, biological and cultural, psychological and genetic) associated with sexual identity, constitutes the core and essence of marriage.”331 He does not seem to assert that the purpose of marriage is procreation and that is why the institution should be limited to persons of opposite genders.
The values of connection and commitment, so important to individuals and society, have heterosexuality and heterosexual marriage as neither a necessary nor sufficient condition. People of the same gender engage in “familistic”332 behavior, support one another and others, become financially dependent on one another, and so on. The [*PG317]potential for community involvement and individual fulfillment that exists for heterosexual couples also exists for same-gender couples. For example, Margaret F. Brinig, in an article calling for use of the term “covenant” in the context of marriage, writes that same-sex couples “can make the permanent commitment and exhibit the selfless loving and giving required for a covenant.”333
The rewards of being in a couple and being married and the demands serious commitment makes can also be rewards to society. Assuming that Hafen’s statement that “legal marriage is more likely than is unmarried cohabitation to encourage . . . personal willingness to labor and invest in relationships with other people, whether child or adult”334 is correct, this counsels for recognizing same-gender relationships, not for pretending they do not exist. If individuals do not plumb the depths of their commitments to each other, society suffers a loss.335
Wardle’s statement that “the integration of the universe of gender differences . . . associated with sexual identity constitutes the core and essence of marriage”336 is problematic for a number of related reasons. First, it assumes that there is a “core and essence of marriage” and that he knows what that is.337 Others view the core and essence of marriage as consisting of love and commitment.338 Second, it ignores the historical evidence that marriage is a social and economic institution whose functions have changed radically through the course of Western history.339 Third, it assumes that certain gender differences are known and universal and thus essentializes gender. Fourth, it is based on gender stereotyping and ignores the vast variations in gender differences that occur across cultures and among individuals.340 [*PG318]Finally, it ignores differences that might exist along race and class lines.341
Lesbian and gay male couples in committed, loving, marital relationships assert that their relationships are of great benefit to themselves and society. If pressed to compare these relationships with others’ relationships, they argue that their relationships are in all relevant senses equivalent to heterosexuals’ marriage relationships. Gay people and their supporters claim that the potential of a companionate relationship to benefit individuals and society has to do with the individuals and their relationship, not with their gender. 342
Wardle asserts that this “functional equivalence” argument is invalid because it is “over-inclusive,” since “people who are engaged in incestuous relations” also may argue that their relationships “are functionally equivalent to traditional marriages (and certainly to same-sex unions) in terms of their preferences and commitments.”343 Comparing the relationships of people who are “engaged in incestuous relations” with the relationships of same-gender couples is inapt. First, Wardle never defines “incestuous relations,” so it is difficult to know precisely what kinds of relations he is talking about. As Carolyn Bratt has noted, “the mere word ‘incest’ triggers strong feelings of revulsion in most people . . . . Such revulsion stems largely from the confusion of incest with the sexual abuse of children.”344 Bratt highlights the important distinction between “state incest statutes as a vehicle for prohibiting and punishing sexual abuse of minors and state incest statutes as a marriage prohibition for adults,”345 while Wardle elides the distinction.
[*PG319] Assuming that the “incestuous relations” Wardle is referring to are instances of sexual intercourse between a father and a minor daughter, criminal laws cover such situations.346 If Wardle is referring to marriages that run afoul of state incest restrictions, perhaps there is ground to challenge some such restrictions.347 While detailed consideration of the issue of laws against incestuous marriages is beyond the scope of this article, Carolyn Bratt provides a lengthy explanation as to why marriage incest statutes do not protect against genetic defects and argues that many such restrictions do not withstand “objective evaluation.”348 The considerable state-by-state variation in incest-marriage provisions may confirm this.349 Nonetheless, some incest-marriage provisions may protect against actual harms. By contrast, no harms follow, to the participants or to anyone else, from the participation of lesbian and gay adults in committed, loving, coupled, marital relationships.350 Thus, to point to the hypothetical example of people enjoying incestuous relationships does not mean that gay couples’ functional equivalence argument is invalid.
The functional equivalence argument is valid, as shown above.351 Since family law should value and nurture positive, serious commitments between adults, it should recognize marriage by same-gender couples.352 If we want to encourage people to have personal commit[*PG320]ments to others and lead interdependent lives, we should allow civil marriage by same-gender couples.
Wardle states that “it seems inconsistent for gay and lesbian advocates to appeal to one moral value—equality—at the same time as they repudiate morality (i.e., the traditional moral opposition to homosexual practices and exclusive preference for sex within heterosexual marriage) as an improper basis for marriage laws.”353 The idea that gay men and lesbians seeking to broaden access to marriage are thereby “repudiat[ing] morality” is unsupported.
First, as Mark Strasser points out, “same-sex relationships are not immoral, just as interracial relationships are not immoral, majority view notwithstanding. Neither type of relationship harms anyone.”354 Moreover, the normative value of a committed gay male or lesbian couple relationship is the same as in a committed heterosexual relationship.355 Second, the use of the term “morality” is not determinative, since arguments based on “morality” have been used to justify both morality and immorality.356 There are genuine differences about what constitutes “morality” regarding sexual behavior, and thus it is not accurate to accuse people of “repudiating morality” if they are seeking the right to marry.357
[*PG321] Wardle refers to “morality” in this context as “the traditional moral opposition to homosexual practices and exclusive preference for sex within heterosexual marriage.”358 This view of “morality” is similar to, and appears to be based at least in part on, that of the “new natural law theorists.”359 These writers claim to prove, on the basis of natural law, that “sexual acts are morally right only within marriage.”360 John Finnis, for example, writes that for sex acts to be moral, they must have “unitive significance.”361 He writes that:
sexual acts are not unitive in their significance unless they are marital (actualizing the all-level unity of marriage) and (since the common good of marriage has two aspects) they are not marital unless they have not only the generosity of acts of friendship but also the procreative significance, not necessarily of being intended to generate or capable in the circumstances of generating but at least of being, as human conduct, acts of the reproductive kind.362
Finnis claims that “deliberately contracepted sex” within heterosexual marriage is not sex of the unitive, moral variety but instead is immoral.363
The new natural law theorists’ arguments have been countered by various scholars, such as Michael Perry,364 Andrew Koppelman,365
[*PG322]Carlos Ball,366 Stephen Macedo,367 and Mary Becker.368 These scholars reject the notion that “deliberately contracepted sex” within marriage is immoral.369 They also reject the notion that sex between persons of the same gender is necessarily morally deficient.370
Becker responds to the natural law theorists’ idea that heterosexuality is inherently morally superior to homosexuality as follows: “[T]he conviction that heterosexuality is inherently morally superior to homosexuality is difficult to respond to because one either sees the moral superiority of noncontracepted heterosexual intercourse in marriage or one does not.”371 While Wardle and others see the inherent moral superiority of noncontracepted heterosexual intercourse, others do not.372
While the new natural law theorists’ arguments are not overtly based on religion, various scholars have shown that they are religion-based. Carlos Ball argues, “despite . . . protestations, Finnis’ arguments depend ultimately on theology-based notions that only sexual acts which are reproductive in nature can be inherently good.”373 Richard Posner writes that Finnis “expound[s] an Orthodox Catholic view in a manner incomprehensible to the secular mind.”374 According to Koppelman, bans on same-gender marriage should not be based on the “exceedingly contestable religious surmises” of the new natural law theorists.375 It is also significant that some religions besides [*PG323]Catholicism have different views on the issue of marriage between couples of the same gender; some religions welcome such unions.376
Ball, importantly, makes clear that his disagreement with Finnis is not simply because his arguments are based in religion or morality: “Finnis is not incorrect because he incorporates arguments of morality and the good to defend his position that public policy should discourage homosexual conduct. Instead, Finnis is incorrect because his arguments are inconsistent, flawed and ultimately unpersuasive.”377 The effort to broaden access to marriage, far from repudiating morality, advances it by endorsing values and aspirations such as commitment, duties, fairness, and caring.378
Wardle argues that gay men and lesbians have no basis for discrimination claims with respect to marriage, employment, or other areas because gay men and lesbians are defined by “sexual behavior.”379 Thus, to him, it is incorrect to speak of invidious discrimination against this group. He states, “the particular sexual behavior that defines the group seeking same-sex marriage entails uniquely high risks to public health and jeopardizes sexual integrity and social order more than most other sexual practices (incest and adultery are the most comparable behaviors).”380 First, lesbians actually have the lowest rate of sexually transmitted disease of any sexually active group.381 Second, the phrase “jeopardiz[ing] sexual integrity” is so vague as to be mysterious.382 Third, it is not clear what it is about gay sexual behavior that “jeopardizes . . . the social order.” Is it the fact that gay male and lesbian couples can not get married? Comparing the situation of gay male and lesbian couples who want to get married with adulterous sexual activity simply highlights the exclusion from marriage.383
[*PG324] Even more important is Wardle’s focus on the “sexual behavior that defines the group.”384 Wardle’s focus on “sexual behavior that defines the group” of gay men and lesbians interestingly mirrors the new natural law theorists’ focus on sexual acts outlined above.385 These opponents of marriage by same-gender couples seem to consider sexual activity to be of paramount importance. But it is inaccurate to say that lesbians and gay men are defined as unique by their sexual behavior, since practices such as oral sex are engaged in by both heterosexuals and homosexuals.386 Mark Strasser has argued that sexual orientation is distinct from sexual behavior,387 and that “sexual orientation does not merely involve a simple, easily identifiable behavior or tendency to perform such behavior, but instead is a vital part of one’s personality.”388 Defining lesbian couples and gay male couples seeking access to marriage only or even primarily by their sexual behavior is inaccurate and reductionistic. Such a definition ignores the “familistic” behavior that such couples engage in and overlooks the benefits of “belonging” that such couples may bring to society. It would be similarly inaccurate and reductionistic to define heterosexual marriage in a way that simply focused on “the particular type of [sexual] behavior that defines the group.”389 Marriage is about connection, interdependence and love, not simply sexual behavior.
Family law, and the law of marriage and divorce, have to a considerable extent become increasingly focused on individuals and their rights over the last forty years. Scholarship based on communitarian ideas has highlighted the trend toward atomism in family law and behavior. However, in important ways, the law of marriage has become more oriented toward mutual duties, and for the first time presents a [*PG325]model of mutual commitment, equality, and interdependence. Acknowledging scholars’ concerns about the atomization of law and society as significant and in some ways negative, the quest for marriage by same-gender couples can be seen as clearly positive. It is a striving toward connection, duty, and responsibility. The opposition to marriage by same-gender couples should be seen as undermining and attempting to sever important connections between people, and in turn fostering increased atomization. Allowing marriage by same-gender couples will be a step toward family law’s finding “ways to sing more clearly the melody of belonging.”390