* Co-Chair Elect, Board of Directors, National Lesbian and Gay Law Association; J.D., Boston College Law School; B.A., University of California, Berkeley.
** Board of Directors, National Lesbian and Gay Law Association; J.D., University of Michigan Law School; M.P.P., University of Michigan Ford School of Public Policy; B.A., Yale University.
The authors thank Sundyna Beaven, Sharon Beckman, David Chambers, David Cruz, Naisargi Dave, Elizabeth Emens, Paula Ettelbrick, Kim Forde-Mazrui, Michele Morris, Chai Feldblum, Kent Greenfield, Nan Hunter, Shelley Smedberg, and Chris Brooks Whitman for helpful insights during the development of this Essay, and Lisa English and Karyl Roberts Martin of the Boston College Law Review, for commitment to its completion. The viewpoints expressed in this Essay are intended to reflect only the position of the authors.
1 See 798 N.E.2d 941, 969 (Mass. 2003). Following the release of the Goodridge decision, the Massachusetts Senate asked whether a “civil union” bill that limited “marriage” to mixed-sex couples would satisfy the court’s ruling. See In re Opinion of the Justices to the Senate, 802 N.E.2d 565, 566 (Mass. 2004). Approximately three months later, in an advisory opinion to the Massachusetts Senate, the court clarified that the constitutional mandate is “marriage”:
The history of our nation has demonstrated that separate is seldom, if ever, equal.
. . . .
. . . The dissimilitude between the terms “civil marriage” and “civil union” is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.
. . . .
. . . [T]he Massachusetts Constitution does not permit this type of labeling.
Id. at 569–71.
2 See Chris Barker, Couples Tying the Knot While They Can, The Bulletin (Portland, Or.), Mar. 5, 2004, at A1 (discussing marriage licenses issued in Multnomah County, Oregon), available at http://www.bendbulletin.com/news/story.cfm?story_no=12869; David Von Drehle & Alan Cooperman, Same-Sex Marriage Vaulted into Spotlight, Wash. Post, Mar. 8, 2004, at A01 (discussing marriage licenses issued in New Paltz, New York); CNN, Judge Combines Same-Sex Marriage Cases, at http://www.cnn.com/2004/LAW/02/20/samesex.
marriage/index.html (Feb. 20, 2004) (discussing licenses issued in San Francisco, California and Sandoval County, New Mexico).
3 CNN, Massachusetts Court Upholds Same-Sex Marriage, at http://www.cnn.com/2004/
LAW/02/04/gay.marriage (Feb. 6, 2004).
4 Elisabeth Bumiller, Bush Backs Ban in Constitution on Gay Marriage, N.Y. Times, Feb. 25, 2004, at A1.
5 Editorial, Gay Marriage in the States, N.Y. Times, Feb. 18, 2004, at A18.
Lawsuits seeking the right to marry have been filed in California, New Jersey, New York, and Washington. See Press Release, Lambda Legal, Lambda Legal Files Historic Lawsuit Seeking Full Marriage for Gay Couples in New York (Mar. 5, 2004), http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1462; Press Release, Lambda Legal, Sweeping Gay Marriage Lawsuit in New Jersey Aims for U.S. History (June 26, 2002), http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1074; Press Release, Lambda Legal & Northwest Women’s Law Center, Lambda Legal and Northwest Women’s Law Center File Lawsuit Seeking Full Marriage for Lesbian and Gay Couples in Washington State (Mar. 8, 2004), http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1464; Press Release, National Center for Lesbian Rights, Gay Rights Groups and Same-Sex Couples Ask California Supreme Court to Enforce Constitutional Requirement of Equal Protection (Mar. 5, 2004), http://www.nclrights.org/releases/pr-sflicenses030504.htm.
6 See infra notes 10–53 and accompanying text.
7 See infra notes 54–91 and accompanying text.
8 See infra notes 92–107 and accompanying text.
9 Throughout this Essay, we use the acronym “LGBT” to refer to the broader lesbian, gay, bisexual, and transgender community. This term is both over- and under-inclusive, and reflects our decision, given the constraints of the Essay, to take a relatively uncomplicated approach to the discrete experience of same-sex marriage. That is, we use the acronym “LGBT” in recognition of the fact that the entire LGBT community is affected by the same-sex marriage effort, although we also acknowledge that it is inaccurate to characterize marriage as a primary issue for all members of the community. Marriage is not at the forefront of either bisexual or transgender organizing, nor are bisexual and transgender concerns sincerely reflected in much lesbian and gay organizing around marriage. As a further clarification on language, we use “transgender” to encompass both transgender and transsexual individuals; we realize that this essentializes the variety of transgender experiences. For transgender individuals, the rhetoric of “same-sex” marriage belies the complexity of their relationships and their legal experience with marriage. In some jurisdictions, transgender parties have been able to marry legally. Paisley Currah, Defending Genders: Sex and Gender Non-Conformity in the Civil Rights Strategies of Sexual Minorities, 48 Hastings L.J. 1363, 1374–75 (1997). In addition, many transgender individuals who entered a mixed-sex marriage before beginning sex reassignment or transition remain in those legally recognized marriages. In other jurisdictions, courts have engaged in intrusive inquiries as to the birth sex assignment or, occasionally, chromosomal sex of one member of a couple and have ignored the individual’s own experience of sex and gender and testimony from various experts in deciding to deny marriage recognition. See, e.g., Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App. 1999). This has led to inequitable results and a sense for some transgender people of existing in a legal no-man’s land. See Currah, supra at 1373–76. Some may argue that legal recognition of both same-sex and mixed-sex marriage will eradicate such problems for transgender individuals. Such a proposition, however, fails to appreciate the erasure of transgender identity that transgender individuals may experience as their relationships are categorized dichotomously as either “same”-sex or “opposite”-sex, unrealistically simplifying the complexity of their relationship with sex and gender. It also fails to address the additional uncertainty of whether a transgender individual’s marriage will receive the preferential status of mixed-sex marriage or that of same-sex marriage. For transgender individuals, the arguments made in support of same-sex marriage often prove troublingly inadequate.
10 The General Accounting Office (the “GAO”) has identified over 1138 federal benefits, rights, and obligations based on marriage. Letter from Dayna K. Shah, Associate General Counsel, United States General Accounting Office, to the Honorable Bill Frist, Majority Leader, United States Senate 1 (Jan. 23, 2004) (“[A]s of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benefits, rights, and privileges.”), available at http://www.gao.gov/new.items/d04353r.pdf. This represents an increase of almost 100 statutory provisions from the GAO’s 1997 survey, which included laws enacted prior to the Defense of Marriage Act. Id.; see Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. � 7 (2000) and 28 U.S.C. � 1738C (2000)). Marriage carries a set of state-sponsored entitlements, including state and federal tax breaks; reduced inheritance and income taxes; social security benefits; inheritance rights; survivor’s benefits upon the death of a spouse in public services, such as police officers, firefighters, and military veterans; family medical leave; the right to visit a spouse in the hospital; the right to seek the services of family court in domestic violence situations; the right to adopt a spouse’s child; the right to sue for a spouse’s wrongful death; preferential treatment in appointment as a guardian, in appointment as a personal representative for an intestate spouse, for consultation in medical decision making, and for immigration purposes; and greater deference and protection with respect to the privileges of child custody and visitation. See Paula L. Ettelbrick, Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, 5 J.L. & Pol’y 107, 126–29 (1996).
11 Gay & Lesbian Advocates & Defenders, Civil Marriage v. Civil Unions: What’s the Difference? 1 (“Marriage is a unique legal status conferred by and recognized by governments the world over. It brings with it a host of reciprocal obligations, rights, and protections. Yet it is more than the sum of its legal parts. It is also a cultural institution.”), available at http://www.glad.org/Publications/CivilRightProject/OP7-marriagevcu.pdf (last visited Mar. 17, 2004); see also Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 965 (Mass. 2003) (noting “marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another”).
12 Some supporters of the incentives surrounding marriage may argue that if marriage were legally available to all couples, regardless of sex or gender, then nonparticipation in marriage would be a choice and it is therefore not unfair to reserve certain benefits to it. This argument has a certain formal appeal but begs the question of whether it is fair to reserve benefits to a certain relationship status at all. See Ettelbrick, supra note 10, at 139. Moreover, for those couples whose relationships do not fit the marriage structure, and for same-sex couples in all states except Massachusetts, marriage is an illusory choice. These individuals, however, continue to subsidize the distribution of benefits to couples who can marry through their participation in the workforce and the economy.
13 Ettelbrick, supra note 10, at 119–22; Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, Out/Look: Nat’l Gay & Lesbian Q., Fall 1989, at 9, 9–10, reprinted in We Are Everywhere 753, 753–54 (Mark Blasius & Shane Phelan eds., 1997).
14 Massachusetts is the only state in which same-sex marriages are legal under the state constitution. See Goodridge, 798 N.E.2d at 967. Thirty-nine states have express bans on same-sex marriage. Human Rights Campaign, Statewide Discriminatory Marriage Laws, at http://www.hrc.org/Template.cfm?Section=Your_Community&Template=/ContentManagement/ContentDisplay.cfm&ContentID=15855 (last visited Mar. 17, 2004) [hereinafter HRC]. Ten states have laws that are arguably silent as to same-sex marriage, and have not, as of yet, recognized same-sex marriages. See id. Within some of these forty-nine states, a handful of municipalities are issuing same-sex marriage licenses, although the legal effect of these licenses is not yet clear. See supra note 2 and accompanying text.
15 See Darren Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561, 585–602 (1997) (noting that many arguments supporting same-sex marriage exclude race and class issues from analysis); see also generally Lisa Duggan & Nan D. Hunter, Sex Wars: Sexual Dissent and Political Culture (1995); Dorothy A. Brown, The Marriage Penalty/Bonus Debate in Black and White, 16 N.Y.L. Sch. J. Hum. Rts. 168 (1999); Ettelbrick, supra note 10; Nancy Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage”, 79 Va. L. Rev. 1535 (1993).
16 See Ettelbrick, supra note 10, at 152–60; Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 Law & Sexuality 9, 16 (1991).
17 See generally Ettelbrick, supra note 10.
18 See infra notes 21–31 and accompanying text.
19 See infra notes 34–44 and accompanying text.
20 See Ettelbrick, supra note 10, at 128–30.
21 See 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, 472–76 (1996); Ettelbrick, supra note 10, at 128–29. The economic incentives built into the structure of marriage are significant. See Brown, supra note 15, at 168. See generally Lambda Legal Defense & Educ. Fund,
Why Marriage Equality Matters, available at http://www.lambdalegal.org/
binary-data/LAMBDA_PDF/pdf/127.pdf (last visited Mar. 17, 2004). For example, marriage entitles employees to important family-oriented benefits employers provide, such as healthcare, paid bereavement leave, parenting leave, sick leave, discounts on tuition waivers, and death benefits. See Gay & Lesbian Advocates & Defenders, Protections, Benefits and Obligations of Marriage Under Massachusetts and Federal Law: Some Key Provisions of a Work-in-Progress 24–26 (2001) [hereinafter GLAD], available at http://www.glad.org/
Publications/CivilRightProject/PBOsOfMarriage.pdf.
22 See Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation?, Out/Look: Nat’l Gay & Lesbian Q., Fall 1989, at 9, 16–17, reprinted in We Are Everywhere, supra note 13, at 757.
23 See id. at 16; see also Dorian Solot & Marshall Miller, Let Them Eat Wedding Rings: The Role of Marriage Promotion in Welfare Reform 4–5 (2002), available at http://www.unmarried.org/rings.pdf.
24 Brown, supra note 15, at 169–70. The federal tax cuts of 2001 included provisions designed to reduce the marriage penalty over time, but analysts suggest that these provisions will have only mixed results. According to Brown, most households earning $10,000 or less were headed by single working individuals, who qualify for the Earned Income Tax Credit (the “EITC”). If such an individual marries someone earning a comparable income, eligibility for the Earned Income Tax Credit greatly diminishes or disappears altogether. The loss of the EITC functions as a potentially severe marriage penalty over and above existing tax laws regulating married couples. M. Wood, Marriage Penalty Hurts Black Families More, Brown Says, News & Events (Univ. of Va. Law Sch., Charlottesville, Va.), Feb. 3, 2004, at http://
www.law.virginia.edu/home2002/html/news/2004_spr/brown_tax.htm; see also Ctr. on Budget & Policy Priorities, The House Proposal to Make Marriage Penalty Relief Provisions Permanent (June 12, 2002), available at http://www.cbpp.org/6-13-02tax.
pdf; Iris J. Lav, Alleviating Marriage Penalties in the EITC, Ctr. on Budget & Policy Priorities (June 10, 1999), http://www.cbpp.org/6-10-99tax2.htm.
25 Wood, supra note 24 (stating that when joint federal tax filing began in 1948, “eighty percent of husbands worked and had a stay-at-home wife, thus the law benefited most of the population—although married black women likely worked more than white women then as well”).
26 See id. (noting that married African-American women earn approximately 40 percent of their household incomes, whereas married white women earn only 29 percent of their household incomes).
27 Brown, supra note 15, at 169–70; Wood, supra note 24.
28 Brown, supra note 15, at 169–70.
29 In a 1997 study by the Congressional Budget Office using projected data for tax year 1996, households earning less than $20,000 per year faced a marriage penalty equivalent to 7.6% of their adjusted gross income, the highest of any income bracket. Cong. Budget Office, For Better or For Worse: Marriage and the Federal Income Tax, at xiv tbl.1 (June 1997), available at http://www.cbo.gov/showdoc.cfm?index=7&sequence=1. Although tax changes since 2001 have raised the standard deductions for married couples in an effort to reduce the marriage penalty, this will have limited impact on those low-income families who were already paying little or no income tax. See Edmund L. Andrews, Fight Looms over Who Bears the Biggest Tax Burden, N.Y. Times, Jan. 13, 2003, at C1. See supra note 24 for a discussion of the potentially penal effect of marriage on EITC eligibility.
30 Brown, supra note 15, at 168–70.
31 Id. at 169–70.
32 Ettelbrick, supra note 22, at 16.
33 Id.
34 See, e.g., Polikoff, supra note 15, at 1546.
35 Robert Pear & David D. Kirkpatrick, Bush Plans $1.5 Billion Drive for Promotion of Marriage, N.Y. Times, Jan. 14, 2004, at A1 (describing Bush’s “extensive election-year initiative to promote marriage, especially among low-income couples,” which “would be available only to heterosexual couples”).
36 TANF was created by the welfare reform legislation of 1996. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified in scattered sections of 42 U.S.C.).
37 Ctr. for Women Policy Studies, Statement in Opposition to “Promotion of Marriage” as a Public Policy Strategy for Ending Women’s Poverty (May 2002), http://www.centerwomenpolicy.org/papers/200205tanfandmarriage.htm.
38 Id.
39 Id.
40 Id. Poverty and welfare reform researchers at Princeton University note that among the assumptions underlying marriage promotion policies in welfare reform is the ideological belief that “the retreat from marriage . . . is a root cause of poverty.” Wendy Sigle-Rushton & Sara McLanahan, For Richer or Poorer?: Marriage as an Anti-Poverty Strategy in the United States 7 (Ctr. for Research on Child Wellbeing, Princeton Univ., Working Paper No. 01-17-FF, 2003), available at http://crcw.princeton.edu/
workingpapers/WP01-17-FF-Sigle.pdf. In a discussion of data from a joint study by Princeton and Columbia Universities (the Fragile Families and Child Wellbeing Study), researchers noted, “Proponents of marriage are substantially overstating its benefits when they compare the earnings or poverty rates of single mother families to those of married, two-parent families.” Id. at 20. They also stated that “[w]ith welfare programs that make it more difficult for two parent families to obtain support when the market fails, marriage for unmarried couples might mean more rather than less vulnerability” because of the prevalence of means testing in benefit distribution. Id.
41 See NOW Legal Defense & Educ. Fund, Marriage and Family Initiatives: Are They Effective?, at http://www.nowldef.org/html/issues/wel/marriagefamily.shtml (last visited Mar. 17, 2004).
42 Id.
43 See supra note 24 and accompanying text.
44 See Ctr. for Women Policy Studies, supra note 37.
45 See, e.g., Troxel v. Granville, 530 U.S. 57, 63 (2000) (plurality opinion) (“The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household.”); Moore v. City of East Cleveland, 431 U.S. 494, 504–06 (1977).
46 Ettelbrick, supra note 10, at 153–59.
47 Id. at 159–65.
48 For a thorough historical and legal discussion of polyamory, ethical nonmonogamy, and the apparently unquestioning popular acceptance of the numerosity requirement of marriage, see generally Elizabeth F. Emens, Monogamy’s Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. Rev. L. & Soc. Change (forthcoming 2004), http://ssrn.
com/abstract=506242 (Feb. 2004) (cited with permission).
49 See supra note 21. Marriage also carries a set of state-sponsored entitlements, including tax breaks, social security benefits, inheritance rights, survivor’s benefits, family medical leave, etc. See supra note 10 and accompanying text.
50 Spouses have rights to retirement and survivor benefits, rights to take family leave to care for family members, including spouses, and other rights not granted to unmarried partners. Immigration laws also provide spousal preferences. See Ettelbrick, supra note 10, at 126–29.
51 See Stoddard, supra note 13, at 11–12 (“[T]here are some barriers one simply cannot transcend outside of a formal marriage.”).
52 See infra Part III.
53 See, e.g., Human Rights Campaign, Fortune 500 Companies That Offer Domestic Partner Health Benefits, at http://www.hrc.org/Template.cfm?Section=Search_the
_Database&Template=/CustomSource/WorkNet/WorkplacePolicySearch.cfm&DPHealth=
f500 (2004).
54 We recognize that for bisexual and transgender individuals, marriage already operates in their lives in the ways that some gay and lesbian individuals may not have been able to appreciate yet.
55 Steven K. Homer, Note, Against Marriage, 29 Harv. C.R.-C.L. L. Rev. 505, 516 (1993).
56 Id.
57 See supra note 10 and accompanying text.
58 Homer, supra note 55, at 516; see also Ettelbrick, supra note 10, at 162 (noting that “[a]nyone who has ever represented lesbian and gay parents knows that there is always a gay exception to family law rules”).
59 Homer, supra note 55, at 516 (“At every point at which same-sex married couples would be seeking the recognition that their marriages imply, they would be vulnerable to a distinction between them and heterosexuals and thereby be vulnerable to devaluation.”).
60 See Chai R. Feldblum, Rectifying the Tilt: Equality Lessons from Religion, Disability, Sexual Orientation, and Transgender, 54 Me. L. Rev. 159, 187–88 (2002) (noting that the public is willing to provide LGBT people “a certain amount of formal equality—but [there is] a distinct lack of willingness to rectify the tilt in a manner that would achieve full equality”).
61 358 F.3d 804, 822–23 (11th Cir. 2004).
62 Id. at 827.
63 Id. at 818.
64 See id. at 818, 819–20.
65 See, e.g., Raphael Lewis, Groups Muster to Fight Gay Marriage in Massachusetts, Boston Globe, Nov. 20, 2003, at A1 (describing gay marriage opposition groups’ “orchestrated campaign” to denounce the Goodridge decision); Press Release, Focus on the Family, Focus on the Family Decries Massachusetts Court Opinion (Feb. 4, 2004) (stating that Goodridge represents “a carefully orchestrated plan of judicial tyranny” to place marriage “under direct attack”), http://www.family.org/welcome/press/a0030377.cfm; Alliance Defense Fund, ADF and Allies See Success: First Post Goodridge Skirmish in Battle to Defend Marriage Ends Well!, at http://www.alliancedefensefund.org/story/?id=165 (Nov. 25, 2003) (stating that “the Massachusetts Supreme Judicial Court discarded God’s plan for marriage and the family by redefining ‘marriage’ to include same-sex couples” and criticizing “the homosexual legal agenda”).
66 See, e.g., Amendments Regarding Marriage, S.J. Res. 26, 108th Cong. (2003); Marriage Amendment, H.J. Res. 56, 108th Cong. (2003); Mary Leonard, Gay Marriage Stirs Conservatives Again, Right Wing Braces for Mass. Ruling, Boston Globe, Sept. 28, 2003, at A1.
67 See, e.g., H.B. 272, 125th Gen. Assem., Reg. Sess. (Ohio 2004) (barring recognition of same-sex relationships and, for the first time, barring state agencies from giving benefits to any unmarried partners); James Dao, Ohio Legislature Votes to Ban Same-Sex Unions, N.Y. Times, Feb. 4, 2004, at A12; see also HRC, supra note 14 (depicting map of states that have declared same-sex marriages void).
68 In discussing public perception of LGBT individuals, Chai Feldblum has noted that:
The distinction between tolerating homosexuality and endorsing homosexuality turns out to be key for various public policy decisions. The reality is that most people in this country do not believe that homosexuality is morally equivalent to heterosexuality. Indeed, a clear majority of the public believes it is “better” to be heterosexual than homosexual, “better” for individuals to be in long-term heterosexual relationships, rather than long-term homosexual relationships; and “better” for children to be brought up in families headed by a heterosexual couple, rather than a homosexual relationship.
See Feldblum, supra note 60, at 186–87. The attainment of marriage may not, at least initially, shatter the perception that heterosexual households are preferable to same-sex households. This distinction may operate to define same-sex marriage as a different, and lesser, form of heterosexual marriage.
69 This potential litigation would be similar to the litigation that arose in the era following the United States Supreme Court’s decision to strike down Virginia’s miscegenation statute in Loving v. Virginia, 388 U.S. 1 (1967). Most notably, in 1984, in Palmore v. Sidoti, the U.S. Supreme Court heard the appeal of a state court order revoking child custody from a divorced mother on the grounds that she was living with an African-American man and that her child would “‘suffer from the social stigmatization that is sure to come.’” 466 U.S. 429, 431 (1984) (quoting App. to Pet. for Cert. 26–27), rev’g 426 So. 2d 34 (Fla. Dist. Ct. App. 1982) (unpublished table decision). The U.S. Supreme Court ultimately reversed the state court’s decision, holding that the race-based decision of the custody order violated the Equal Protection Clause. Id. at 434. Sidoti provides both good and bad news for same-sex couples: the Supreme Court may continue to hold that “[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect,” but it may require years of costly litigation to reach that decision. See id. at 433. For many families, such litigation will not be an option.
70 See, e.g., Lofton, 358 F.3d at 818–20, 827. Consider the case of Michael H. v. Gerald D., 491 U.S. 110, 129–30 (1989) (rejecting biological father’s challenge of a state law that creates the presumption that a child born to a married woman living with her husband is a child of the marriage). What if, in a same-sex marriage context, “Michael H.” was the sperm donor? Would courts still presume that the non-biological parent is the parent in order to protect the integrity of the married family unit? Even if the sperm donor was the only chance the child would have for a male role model?
71 Their access to benefits with marriage, however, would probably still be greater than their access to benefits if they could not marry.
72 See Ettelbrick, supra note 10, at 121.
73 See Letter to the Editor from Chris A., Unemployed, Homeless and . . . Hitched?, PlanetOut, at http://www.planetout.com/news/letters/?id=150 (Feb. 24, 2004).
74 Id.
75 Shahar v. Bowers, 114 F.3d 1097, 1101 (11th Cir. 1997) (upholding Georgia Attorney General Michael Bowers’s revocation of job offer on grounds that lesbian attorney who intended to wed her same-sex partner would be unable to enforce sodomy laws and hinting at inconsistency of enforcing laws that could be applied against attorney’s own intimate acts). In an ironic twist, Bowers subsequently admitted to committing adultery, also a violation of Georgia law, while serving as Attorney General. Shahar v. Bowers, 120 F.3d 211, 211 (11th Cir. 1997) (denying plaintiff’s motion for rehearing and motion to supplement the record with Bowers’s admission). For a discussion of same-sex marriage as a publicly anti-assimilationist act, see Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002).
76 At least twenty-two states still have laws criminalizing adultery. See Ala. Code � 13A-13-2 (1994); Ariz. Rev. Stat. � 13-1408 (2001); Colo. Rev. Stat. � 18-6-501 (2002); Fla. Stat. Ann. � 798.01 (West 2000); Ga. Code Ann. � 16-6-19 (2003); Idaho Code � 18-6601 (Michie 1997); 720 Ill. Comp. Stat. 5/11-7(a) (2002); Md. Code Ann., Crim. Law � 10-501 (2002); Mass. Gen. Laws ch. 272, � 14 (2002); Mich. Stat. Ann. � 28.219 (Michie 1990); Minn. Stat. � 609.36 (2003); Miss. Code Ann. � 97-29-1 (2000); N.H. Rev. Stat. Ann. � 645:3 (1996); N.Y. Penal Law � 255.17 (McKinney 2000); N.C. Gen. Stat. � 14-184 (2003); N.D. Cent. Code � 12.1-20-09 (1997); Okla. Stat. tit. 21, � 871 (2002); R.I. Gen. Laws � 11-6-2 (2002); S.C. Code Ann. � 16-15-60 (Law. Co-op. 2003); Utah Code Ann. � 76-7-103(1) (1999); Va. Code Ann. � 18.2-365 (Michie 1996); W. Va. Code � 61-8-3 (2000); see also Emens, supra note 48 (manuscript at 10–11 & n.48).
77 See Emens, supra note 48 (manuscript at 10–11 & n.47).
78 For a discussion of selective enforcement of fornication and adultery laws, including the ways in which they have been selectively interpreted against heterosexual as opposed to homosexual parties, see Mark Strasser, Sex, Law, and the Sacred Precincts of the Marital Bedroom: On State and Federal Right to Privacy Jurisprudence, 14 Notre Dame J.L. Ethics & Pub. Pol’y 753, 778–90 (2000).
79 See Bowers v. Hardwick, 478 U.S. 186, 187–88 (1986). But see Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003) (striking down Texas’s same-sex sodomy law, and, by extension, all sodomy laws, as inconsistent with the substantive due process guarantees of the Federal Constitution).
80 State v. Limon, 83 P.3d 229, 236 (Kan. Ct. App. 2004) (upholding sentence for bisexual youth convicted of criminal sodomy with a fourteen-year-old, even though the sentence was thirteen times longer than a heterosexual youth would have received for a similar offense, on grounds that such disparity promoted “traditional sexual mores,” such as procreation and marriage).
81 See Eve Kosofsky Sedgwick, Epistemology of the Closet 19 (1990); Kara S. Suffredini, Note, Pride and Prejudice: The Homosexual Panic Defense, 21 B.C. Third World L.J. 279, 284 (2001). There is also the converse possibility that such stereotypes could dissipate for all LGBT individuals as a result of visible decisions by some same-sex couples to marry, which presumably is indicative of an enduring, monogamous commitment. See Goodridge, 798 N.E.2d 941, 965 (Mass. 2003) (noting “marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another”).
82 See An Act Relating to Civil Unions, Vt. Stat. Ann. tit. 15, �� 1201–1207 (2001). The law provides that a same-sex couple may enter into a legally recognized civil union, which provides the same benefits, protections, and responsibilities as a civil marriage. Id. � 1204.
83 Richard Higgins, UVM Revises Domestic-Partner Policy, Legal Unions Now Required, Boston Globe, Sept. 28, 2000, at B3 (“[T]he University of Vermont has told gay and lesbian employees with long-term partners that they have to legalize their relationships under the state’s new civil union law if they want to keep getting domestic partner benefits.”).
84 Ettelbrick, supra note 10, at 163.
85 See 358 F.3d at 818–20.
86 Ettelbrick, supra note 22, at 9, 14.
87 See Lisa Duggan, Holy Matrimony!, The Nation, Mar. 15, 2004, at 14, 16–18, available at http://www.thenation.com/doc.mhtml?i=20040315&s=duggan&c=1; Hutchinson, supra note 15, at 585–602.
88 Goodridge, 798 N.E.2d at 965; see also David B. Cruz, The New “Marital Property”: Civil Marriage and the Right to Exclude?, 30 Cap. U. L. Rev. 279, 293–99 (2002).
89 Goodridge, 798 N.E.2d at 965.
90 Duggan, supra note 87, at 18 (citation omitted).
91 See id.
92 Urvashi Vaid, Virtual Equality 212 (1995).
93 Id.; see also Ettelbrick, supra note 22, at 14 (noting that the right to marry would create rights for a few, but not broader justice); Feldblum, supra note 60, at 187 (noting the difference between formal and full equality).
94 798 N.E.2d 941, 969 (Mass. 2003).
95 See supra note 2 and accompanying text.
96 See supra notes 66–67 and accompanying text.
97 Duggan, supra note 87, at 15–16, 18; see also Human Rights Campaign Found., The State of the Family: Laws and Legislation Affecting Gay, Lesbian, Bisexual and Transgender Families 13–17 (2002), http://www.hrc.org/Template.cfm?Section=LGBT
_Families&CONTENTFILEID=379&TEMPLATE=/ContentManagement/ContentDisplay.
cfm (listing states that recognize civil unions (Vermont), some form of domestic partnerships—often limited to health insurance (California, Connecticut, Maine, Oregon, Washington, New York, Rhode Island, Vermont), and reciprocal beneficiaries (Hawaii)).
98 Id. at 15. For a discussion of ways in which domestic relations law might borrow from corporate law to recognize a wider range of relationship functions and structures, see generally Martha M. Ertman, Marriage as a Trade: Bridging the Private/Private Distinction, 36 Harv. C.R.-C.L. L. Rev. 79 (2001).
99 Duggan, supra note 87, at 15.
100 Id.
101 Id. at 15–16.
102 Id. at 15.
103 See Ctr. for Women Policy Studies, supra note 37.
104 Duggan, supra note 87, at 18–19.
105 See supra note 66 and accompanying text.
106 See H.B. 272, 125th Gen. Assem., Reg. Sess. (Ohio 2004).
107 Id.; Dao, supra note 67, at A12.
108 The authors recognize that many LGBT individuals’ identities intersect with race, ethnicity, gender, and class issues.
109 Cathy J. Cohen, Punks, Bulldaggers and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ: J. Lesbian & Gay Stud. 437, 458 (1997).