[*PG595]SPEAK NOW: PROGRESSIVE CONSIDERATIONS ON THE ADVENT OF CIVIL MARRIAGE FOR SAME-SEX COUPLES
Abstract: Amidst the political and legal storm surrounding the Massachusetts Supreme Judicial Court’s recent groundbreaking decision in Goodridge v. Department of Public Health, which extends marriage rights to same-sex couples in Massachusetts, this Essay seeks to maintain the debate questioning the supremacy of marriage as the ideal family unit. The Essay presents examples of the subordinating effects that marriage laws sometimes have on women, people of color, and the poor; and it explores specific problematic possibilities that the new application of marriage laws may hold for lesbian, gay, bisexual, and transgender individuals. The Essay contends that marriage, although providing significant gains for some, is not a panacea. The Essay then proposes a progressive vision for the separation of certain important benefits from their traditional association with marriage and for the diversification of forms of partnership and household recognition.
Since November 18, 2003, when the Massachusetts Supreme Judicial Court released its historic decision in Goodridge v. Department of Public Health, extending civil marriage rights to same-sex couples under the Massachusetts Constitution, it seems that everyone is weighing [*PG596]in on the same-sex marriage debate.1 A number of cities across the nation have begun issuing marriage licenses to same-sex couples in, what some may call, acts of civil disobedience.2 A “deeply troubl[ed]”3 President George W. Bush has announced his support for a federal constitutional amendment prohibiting same-sex marriage.4 In contrast, an editorial in The New York Times has proclaimed that “[t]his page fully supports the right of gay men and lesbians to marry.”5
[*PG597] Much of this current debate presumes the supremacy of married, two-parent families, engaging only the narrow question of whether same-sex couples should have access to the rights and responsibilities of civil marriage. This Essay does not weigh in on the right, or the choice, of same-sex couples to marry. Instead, this Essay steps back from the current political and legal storm over same-sex marriages to question the supremacy of marriage as the ideal family unit and to offer a progressive vision for the diversification of partnership and household recognition post-Goodridge.
Part I of this Essay considers several significant economic and social incentives that federal and state laws and private entities provide to encourage marriage and deconstructs several examples of their sometimes inequitable distribution along gender, race, and class lines.6 Against this backdrop, Part I briefly considers how such incentives may be decoupled from relationship status and provided more equitably. Part II examines some possible operations of marriage in the context of same-sex couples.7 Part III proposes an inclusive strategy for the recognition of a diverse range of relationship forms in addition to marriage, and also for the disassociation of important legal and economic benefits from relationship status.8 This Essay concludes that translating the attainment of marriage into a gain for all lesbian, gay, bisexual, and transgender (“LGBT”)9 individuals may require a [*PG598]complicated approach to marriage advocacy that accounts for some of the interconnected effects of marriage laws across gender, race, class, and sexuality lines and that recognizes the specific and varied needs of real households.
Some federal and state laws, as well as many private entities, encourage marriage by providing potentially valuable and unique incentives to couples who marry, while withholding these benefits from individuals and couples who do not.10 Although such incentives may not have a strong effect on a couple’s decision to marry, they are valuable, tangible privileges attendant to participation in marriage. Additionally, marriage carries intangible personal and social benefits; it is “a cultural institution,” often read as a public symbol of a couple’s love and com[*PG599]mitment.11 Despite some growth in recognition of nonmarital family structures, such as the increasing numbers of unmarried mixed-sex couples in domestic partnership or cohabitation arrangements,12 marriage remains the most privileged form of family relationship in American society.
This privileged institution, however, is not available to all those who may wish to enter it.13 Same-sex couples do not have the legal right to marry in forty-nine states.14 For those who can and do marry, some incentives that accompany marriage may attach differently, or not at all. Women, people of color, and the poor are among those likely to receive uneven benefits.15 This Part presents some examples [*PG600]of the inequitable distribution of economic marriage benefits along gender, race, and class lines, and briefly considers how some incentives may be distributed more equitably.
The traditional model of marriage is structured in a gendered and socially hierarchical manner.16 According to this model, the husband is the sole wage earner and supports the household financially, while the wife manages the domestic affairs. Under this model, married couples are superior to unmarried couples.17 Some state and federal laws provide certain economic incentives only to married households that most closely resemble this model, thereby promoting and reinforcing its primacy.18 Other state and federal laws may withhold or deny economic benefits to unmarried households least resembling the traditional model.19 Finally, certain critical benefits, such as access to healthcare, traditionally are associated not only with marriage but also with employment, and therefore may not be available to some households with limited employment benefits, despite their resemblance to the traditional model.20 These examples of some of the inequities that may result from the privileged structure of traditional marriage, without undermining the potential value of its numerous economic and social benefits, provide a basis for questioning the primacy of the traditional, married, two-parent household.
Federal and state laws may entitle some married couples to exemptions from certain estate taxes, permit couples to file joint tax returns, and establish immigration rights for spouses from another country. The economic benefits marriage laws provide may include access to tax exemptions, inheritance and survivor rights, and insurance privileges.21 The economic rights and obligations that accom[*PG601]pany marriage do not, however, benefit all married couples uniformly.22 Some of these marriage benefits, such as tax-free inheritance, retirement and survivor benefits, and reduced income tax, promote wealth preservation and may be more beneficial to those households with some amount of wealth, however small, to preserve. For those without accrued wealth, spousal retirement and survivor benefits may be particularly important.23
In a study evaluating the racial impact of federal tax laws, Professor Dorothy Brown found that the so-called marriage penalty had uneven effects across race lines.24 The marriage penalty, which occurs when married spouses who both work pay more in taxes than they would if they were unmarried, affects households where spouses earn similar incomes.25 African-American couples are more likely than white couples to earn similar incomes, and consequently to pay a marriage penalty.26 According to Brown, this effect appears to hold true at all but the [*PG602]upper range of income levels.27 The marriage penalty appears to affect upper- and middle-class white households least.28 Low-income households of all races face the greatest tax consequences from marriage.29 Professor Brown explains this uneven impact as the consequence of a marriage model that favors single-wage-earner households over dual-earner households and that fails to appreciate the differences in women’s roles as co-providers across race and class lines.30 Because federal tax laws contemplate hierarchically and traditionally gendered households in which a single, usually male, wage-earner supports the household, they fail to address the realities of many households in which both partners work and earn similar incomes. As a result, federal tax laws offer fewer breaks and may even hold more penalties for African-American families and low-income families of all races.31
Private entities also provide important incentives to marry, such as access to employer-sponsored healthcare coverage. As with some marriage benefits, privatized healthcare may also be distributed differently across gender, race, and class lines. Automatic access to spousal healthcare coverage by virtue of marriage may be more likely to benefit those households with only one spouse working for an employer who offers healthcare benefits.32 Marriage appears least valuable as a vehicle for accessing healthcare to households in which both, or neither, partners have jobs with employers that offer such benefits. For households in which both partners enjoy coverage through their employers, access to each other’s healthcare by virtue of marriage may provide financial savings and choices, but may not be perceived as economically vital. For low-income households, in which one or both partners work for an employer that artificially restricts hours below thresholds where provision of benefits is required, or that simply does not provide certain [*PG603]benefits, marriage may be ineffective as a means to access valuable health insurance coverage. As Professor Paula Ettelbrick has observed, “For women, particularly women of color who tend to occupy the low-paying jobs that do not provide healthcare benefits at all . . . . [t]he opportunity to marry will [not] get them the health benefits . . . .”33 Therefore, workers at hourly positions or in service industries are likely to find themselves without healthcare benefits.
Sometimes, the marriage model is used coercively, rather than merely as an incentive scheme.34 As with marriage incentives, this coercion is likely to be experienced unevenly along gender, race, and class lines. Coercive pressures to marry are reflected in President Bush’s announcement of a $1.5 billion marriage promotion program targeting low-income households.35 The program reflects a public policy decision to privatize traditionally public programs that assist economically and socially marginalized communities.
Coercive pressures to marry also appear in the context of welfare and public assistance. The Center for Women Policy Studies has documented the increasing trend in welfare reform, enforced through the Temporary Assistance for Needy Families (“TANF”) program,36 to promote explicitly “the formation and maintenance of two-parent families.”37 This policy uses marriage as a public policy approach to privatize responsibility for poor women and their children by moving them into husband-and-wife households and, according to the assumption, off welfare.38 This policy of marriage promotion in welfare reform has diverted “already limited and insufficient funding for custodial parents, mostly women, to fund job training for non-custodial parents, mostly men, on the assumption that these newly employed men will provide financial support to their children and perhaps marry the women who are the mothers of their children.”39 The implementation of this policy [*PG604]in welfare reform has been at the expense of resources to fund job training and to promote women’s economic self-sufficiency.40
Similarly, the National Organization for Women (“NOW”) observes that under federal welfare reform laws, states that achieve the greatest annual reduction in out-of-wedlock births without increasing the number of abortions performed receive an “illegitimacy bonus.”41 TANF also promotes a “family cap” policy to discourage women from having additional children while receiving welfare assistance. The family cap policy denies welfare benefits to children born to unmarried welfare recipients or heightens work requirements for mothers who exceed the family cap.42 These policies fail to appreciate the complicated interplay of gender, race, and economic subordination in the real lives of poor mothers and their children, a multivalent problem that marriage alone likely cannot solve. In fact, for some low-income households, marriage may cause economic loss by rendering them ineligible for the Earned Income Tax Credit.43 The imposition of marriage as a solution to female poverty illustrates one way in which laws characterizing marriage as the preferred family structure not only fail to reduce, but may, in some instances, even aggravate the economic and social subordination of women, particularly women of color.44 The promotion of marriage as a solution to poverty deprives poor, single mothers of necessary economic benefits, and shifts attention away from the lack of job training, education, or government services for the poor and to the poor’s stigmatized marital practices.
Over the last few decades, the U.S. Supreme Court gradually has recognized the variety in American families without, however, challenging the lack of equivalence in family status among these varied family forms.45 Federal laws privileging marriage may work to exclude communities in which family ties are built on social, romantic, economic, or kinship networks rather than marital vows. Such laws fail to offer important state and social recognition of these communities’ real needs and values.
Some same-sex couples may be invested in the concept that love and function, not marriage or form, make a family.46 This may be because they have been unable to marry legally. Alternatively, some same-sex couples may desire recognition of multiparty relationships.47 For example, a same-sex couple who have a child with a known sperm donor or surrogate mother may wish to form a three-party relationship, with each party having recognized rights vis-�-vis the other parties and the child. Alternatively, a bisexual individual may wish to maintain a co-parenting relationship with a former partner even after each has formed a new primary relationship. Some LGBT individuals may form polyamorous or ethically nonmonogamous relationships.48 As some same-sex couples begin to enter legal marriage, other LGBT individuals and couples will be excluded; it is therefore important to remain mindful of the diversity of real partnerships and households, and to engage critically the primacy of the married, two-parent model.
Marriage attracts people for a variety of reasons, some of which are personal and some of which are economic or social. Marriage car[*PG606]ries numerous valuable and, in some instances, unique benefits.49 The rights that marriage laws grant married couples in the domestic relations, tax, and employment contexts are significant.50 Although some same-sex couples may have the means to make private contractual arrangements regarding property and child custody, many couples do not; for these couples, marriage may provide an economical alternative. Additionally, some same-sex couples may experience the process of hiring an attorney to contract the intimate arrangements of their relationship as alienating or anxiety-producing. Moreover, private contracts cannot grant many of the rights extended to married persons under current law, such as family leave or social security survivor rights.51 Marriage laws and the benefits that they provide eliminate the need for many such costly and invasive legal arrangements.
Although access to marriage is a significant gain for some same-sex couples, marriage may not be the only means by which LGBT families can attain equal economic and social benefits.52 Certainly, marriage need not be the only strategy pursued. A growing number of private employers provide benefits to same-sex couples through domestic partner coverage.53 Some employers extend domestic partner benefits to both mixed-sex and same-sex couples; others cover only same-sex couples. Whether this trend reflects a growing willingness to recognize non-marital relationships or simply a pragmatic business decision designed to attract desirable employees, such a decoupling of benefits from marriage represents a positive move toward recognition for all LGBT family relationships in the full range of forms in which they occur, including step-families, co-parenting arrangements, unmarried couples and individuals, and married couples.
Access to same-sex marriage may import some of the inequalities described in Part I and may also introduce new, specific inequalities into the lives of LGBT individuals.54 Marriage laws probably will continue to favor households containing a primary wage earner and may therefore unevenly distribute some benefits along race and class lines. Private provision of marriage-contingent benefits may continue to forestall inquiry into ways to provide basic healthcare to all individuals, regardless of employment or relationship status. Welfare laws may continue to promote marriage as a solution to poverty, shifting attention from job training, education, or government services to the poor’s marital practices. Although marriage may offer some same-sex couples valuable and unique benefits, obtaining the right to civil marriage may not guarantee unchallenged access to the presumptive benefits traditionally associated with mixed-sex marriage.55 It is possible that the bias that has historically operated to discriminate against LGBT individuals in housing, employment, and domestic relations law will continue to limit the rights associated with marriage. Additionally, same-sex marriage may carry potentially deleterious consequences for some LGBT individuals, both because it introduces new forms of state regulation into LGBT lives and because it may endorse the presumed supremacy of married, two-parent families over other formations.56
Laws promoting marriage offer a host of incentives and benefits, including presumptions in child custody matters, immigration preferences, application of divorce laws, survivorship benefits, and reduction of inheritance taxes.57 These benefits are presumptions, however, not guarantees.58 It is possible that the benefits associated with traditional mixed-sex marriages may not be extended equally, without challenge, to [*PG608]same-sex marriages.59 Social and legal discrimination, which have operated to deny same-sex couples access to marriage for decades, may continue to operate to deny same-sex married couples the same degree of presumptive deference and privilege afforded mixed-sex marriages.60
The recent federal appellate decision in Lofton v. Department of Children and Family Services is instructive on this point.61 In 2004, in Lofton, the Eleventh Circuit upheld a Florida law barring LGBT individuals from adopting.62 The Lofton court approved Florida’s justification for the law, which correlated the best interests of the children with “placing them in families with married mothers and fathers . . . [which] provide the stability that marriage affords and the presence of both male and female authority figures.”63 Even if the Lofton plaintiffs had been able to, and actually did, marry in Florida, it is possible that the presumptions created by their status as a married couple could have been overcome by the court’s stated preference for families with “married mothers and fathers.”64
The Lofton decision demonstrates the presumed supremacy of mixed-sex marriages. The deeply hostile backlash to Goodridge v. Department of Public Health,65 the renewed effort to pass a federal constitutional amendment to define “marriage” as between one man and one [*PG609]woman,66 and the flurry of anti-same-sex marriage activity in state legislatures around the country,67 each also demonstrate that even as same-sex couples consider marriage, potent bias against LGBT individuals and same-sex marriages persists. This animus may operate in a variety of contexts, including family structure, immigration preferences, and survivorship benefits, to militate against the extension of the benefits presumptively associated with traditional mixed-sex marriage to same-sex marriages. As a result, same-sex marriage may be interpreted as a lesser version of “traditional” mixed-sex marriage, and same-sex marriage may, instead, become same-sex marriage.68
If anti-LGBT bias operates to deny same-sex marriages the same degree of presumptive deference and privilege afforded mixed-sex marriages, the full panoply of rights associated with marriage may be less readily available to those same-sex couples who are economically or emotionally unable to litigate to enforce them.69 For example, married [*PG610]same-sex couples may not enjoy the same parental preferences as married mixed-sex couples, and may need to prepare, at least in the next few years, to obtain appellate review of Lofton-like judicial decisions that find the placement of children in mixed-sex married households preferable to their placement in same-sex households.70 Accordingly, ongoing anti-LGBT bias may leave those LGBT individuals who do not have the practical or financial means to contract outside of marriage with compromised access to benefits, even when they choose to marry.71 Similarly, same-sex marriage may enable some LGBT individuals who otherwise would be without healthcare to access such benefits through their spouses; same-sex marriage, however, will not create access to such benefits for those same-sex couples in which neither partner has access to healthcare benefits.
Residual anti-LGBT discrimination in other critical areas, such as housing and employment, may prevent some same-sex couples from realizing some marriage-related benefits.72 Absent protection from discrimination in housing laws, some same-sex married couples may be unable to enjoy tenant laws favorable to married couples without exposing themselves to the possibility of lawful eviction by their landlord based on their sexual orientation.73 Likewise, in contexts lacking protections against employment discrimination, some same-sex married couples may not be able to enjoy employer-provided spousal benefits because applying for such benefits may expose them to legal termination on the basis of their sexual orientation.74 Indeed, it is possible that the mere fact of marrying a same-sex partner could lead to employ[*PG611]ment termination.75 Although housing or employment discrimination may be vulnerable to legal challenge, some same-sex couples may be unable to sustain the initial loss of a home or a job and, additionally, may be unable to sustain the financial and emotional burden of litigating to enforce rights presumably attendant to their marital relationship. These couples could be the same couples for whom it has been predicted that same-sex marriage would lessen the burdens associated with having to contract for relationship-oriented rights outside of marriage.
In summary, persistent discrimination against LGBT individuals and the lack of sufficient protections in critical areas, such as housing and employment, may compromise these individuals’ enjoyment of some of the valuable and unique benefits attendant to marriage. As a result, same-sex couples may not be able to enjoy the benefits of marriage in parity with individuals in mixed-sex marriages.
Access to marriage may carry deleterious consequences for some LGBT individuals. Same-sex marriage may introduce new forms of state and social regulation of sexuality into LGBT lives based on the married/unmarried distinction. LGBT individuals, particularly those in multiparty or nonmonogamous relationships, may become newly vulnerable to criminal laws that regulate marital monogamy, such as adultery76 and fornication laws.77 Although such criminal laws have fallen [*PG612]largely out of favor, it is not unusual for archaic laws to be enforced selectively against marginalized communities.78 This has been true with respect to the selective application or enforcement of sodomy laws against LGBT individuals.79 It also occurs in the context of statutory rape laws, which authorities persist in using to regulate same-sex activities among LGBT youth.80 In addition to vulnerability to marital monogamy laws, unmarried LGBT individuals increasingly may be subjected to pernicious stereotypes that cast LGBT individuals as sexual predators incapable of monogamous commitment.81 As such, the promise of integration and acceptance that marriage offers some members of the LGBT community may come at the risk of introducing new forms of state and social regulation of LGBT sexuality to all members.
The legal and social preference for the married, two-parent family model may also create a hierarchy within the LGBT community, privileging married, two-person same-sex families over other same-sex partnership and household forms. This hierarchy could be counterproductive to efforts to diversify forms of partnership and household recognition. For example, domestic partner benefits have been available in some instances to same-sex couples in committed relationships, but not to similarly committed mixed-sex couples, based on the rationale that same-sex couples, unlike mixed-sex couples, have not had the option to marry. In jurisdictions where same-sex marriage becomes an option, it [*PG613]would be disappointing, but probably not surprising, if state and private businesses ceased to offer domestic partner benefits.
The advent of civil unions in Vermont underscores this point.82 Prior to Vermont’s recognition of civil unions, the University of Vermont provided domestic partner benefits to unmarried same-sex couples, but not to unmarried mixed-sex couples. Civil unions created a disparity between same-sex couples, who had the option of accessing benefits either by registering as domestic partners or by entering into a civil union, and mixed-sex couples, who only had the option of accessing benefits by marrying. In response, rather than extending the option of domestic partner benefits to all committed couples, the University of Vermont revoked the option of domestic partner benefits altogether.83 Such a revocation of recognition of diverse partnership and household arrangements suggests that, although same-sex marriage stands to extend valuable and unique benefits to some same-sex couples, it also may stand to reduce the availability of legal recognition of other partnership and household arrangements. Even with the choice of civil marriage, this reduction in recognized household options could be harmful to some LGBT families and may run counter to historic social justice and equality concerns of some parts of the LGBT movement.
LGBT families that do not fit the traditional marriage model may benefit more from the availability of recognition for other partnership and household arrangements than from the availability of same-sex marriage. As Paula Ettelbrick states, “The clarity that marriage arguably provides for two-person couples without children blurs when there are more than two parents, either functional or biological. And although there are solutions to these questions, it is doubtful that they lie in same-sex marriage.”84 LGBT families often can be more complex than the model of traditional mixed-sex marriage. Consider the pair of lesbian co-parents who wish to involve their child’s biological father in their child’s upbringing without affirming his paternity rights. As the Lofton case illustrates, preferences for mixed gender role models may [*PG614]operate to confine same-sex parental rights.85 Same-sex marriage may not be able to overcome such prejudicial preferences. Thus, to the extent that the availability of same-sex marriage may result in a reduction of recognition for diverse forms of partnership and households, LGBT families that do not fit the traditional marriage model may not benefit and may even be harmed.
Fifteen years ago, in advocating against prioritizing marriage at the expense of other LGBT equality or liberation-oriented efforts, Ettelbrick noted that “marriage defines certain relationships as more valid than all others” and, as such, “runs contrary to two of the primary goals of the lesbian and gay movement: the affirmation of gay identity and culture; and the validation of many forms of relationships.”86 The legal preference for marriage, to the possible disparagement or exclusion of other forms of partnership and household structure, conditions valuable social and legal benefits on a preferred relationship status rather than on need or function. Thus, to the extent that the advent of same-sex marriage diverts attention from challenging the fairness or utility of such benefit distribution, or results in a reduction of recognition for other partnership and household arrangements, it could undermine a broader movement for social justice and democratic diversity.87
Marriage advocacy that does not examine critically the legal structure of the institution and its broader social effects may be counterproductive to efforts to gain recognition for diverse forms of partnership and household structure. Much of the debate between proponents and opponents of same-sex marriage centers on the ownership of the “tradition” of marriage, with each side claiming that its position serves to better “reinforce the importance of marriage to individuals and communities.”88 In Goodridge, the court may have predicated its decision, in part, on its perception of the plaintiffs’ acceptance of the presumptive supremacy of the tradition of marriage. In reaching its conclusion that same-sex couples should have access to marriage, the court noted, as a threshold matter, that “the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the con[*PG615]sanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law.”89
It may be instructive, however, to distinguish between “sameness” in the sense of being equally deserving of freedom from discrimination and “sameness” in the sense of disparaging less conforming expressions of gender, sexual intimacy, and familial structuring. The claims that all LGBT individuals are the “same” as non-LGBT individuals, that all want the “same” things, that the only way for them to be fully equal is to be able to marry, and that, absent marriage, same-sex couples are “in a state of permanent adolescence,” may serve to promote marriage in terms that marginalize other partnership and household forms by stigmatizing them as adolescent and legitimizing the notion that there is “no other way” to achieve greater “esteem” than to marry.90
Because ongoing anti-LGBT bias may operate to extend marriage unequally to some same-sex couples, may carry deleterious consequences for some LGBT individuals, and may be counterproductive to the diversification of forms of partnership and household recognition, marriage, although a significant gain, may not be a panacea. As same-sex couples begin marrying, therefore, it is important to shift the debate from a presumption of the supremacy of the tradition of married, two-parent families to a progressive vision for a diversification of partnership and household recognition that honors the history of the varied forms of LGBT families and their needs for recognition and support. A broader vision of possibilities may translate the immediate ability of some LGBT couples to access valuable and unique rewards into a movement for social justice and democratic diversity that may benefit many forms of LGBT families.91
Current marriage advocacy and the movement to achieve a progressive vision for diversification of partnership and household recognition can be complementary pursuits. In her 1995 book, Virtual Equality, Urvashi Vaid observed that “[t]o win genuine equality, a rights-oriented movement and a gay liberation movement are both necessary.”92 Genuine, rather than formal, equality for LGBT individuals requires a commitment not only to attaining the same social and legal [*PG616]rights as those extended to heterosexual individuals, but also to achieving freedom from discrimination flowing from their differences.93 As long as LGBT individuals face discrimination based on their differences from heterosexual individuals, that discrimination may operate to compromise the parity of the rights, such as marriage, that LGBT individuals attain. Thus, in the wake of Goodridge v. Department of Public Health,94 the flurry of marriage ceremonies in select cities across the nation,95 and the threat of anti-marriage amendments to the U.S. Constitution and some state constitutions,96 it is imperative to consider how to preserve the rights associated with marriage not only by promoting the “sameness” of some LGBT individuals, but also by challenging the stigma associated with the differences of other LGBT individuals. Attaining marriage may be one way for some LGBT families to achieve state and social recognition and support, but it may not be the only way, and it need not be the exclusive way.
In her recent article, Holy Matrimony!, Lisa Duggan offers a number of means by which the drive for marriage may be used as a progressive springboard to recognition of an expanded and diverse range of relationship forms, rather than as an impetus to whittling down options to simply married or single.97 Progressives could promote the retention and expansion of alternatives to marriage, such as domestic partner schemes, civil unions, and reciprocal beneficiary status.98 Progressives could also begin to promote disentangling the symbolic, kinship, social, and economic functions of marriage.99 This might include disassociating tax advantages from kinship, household, or romantic status, so that individuals could direct such advantages not only to a resident intimate [*PG617]partner, but also to a designated non-resident relative or friend.100 This might also include efforts to achieve basic, universal healthcare, thus creating access to healthcare based on need, rather than on select relationship and employment statuses.101
Attempts to create such “a flexible menu of options” and to make critical benefits available regardless of household, partnership, or employment status, could yield both practical and symbolic benefits.102 They could create choices for forms of household and partnership recognition that might better respond to the diverse forms that real households take, depending on their specific and varying needs, while preserving marriage for those whose needs and desires favor the marital arrangement. It could also address some of the inequities that may flow from the current presumptive social supremacy of the two-parent married household, such as marriage promotion as an instrument of welfare reform policy and the marginalization of unmarried or single-parent households and “out of wedlock” births.103 These changes may have more obvious appeal for those individuals for whom marriage may be only a means, or both a means and an end, to a broader goal of social justice.104 Support for these changes could also appeal, however, to individuals for whom the attainment of marriage may be simply an end in itself.
The current political and legal storm around marriage has deepened the commitment by some to preserve gendered marriage on economic as well as moral grounds. Depending on its final wording and interpretation, the proposed federal marriage amendment may bar not only same-sex marriage but all recognition of diverse partnership and household forms, including civil unions, domestic partnerships, and reciprocal beneficiary statuses.105 This could render civil, heterosexual marriage the only form of legally recognizable family relationship available at the federal, state, and municipal level, and may deter private businesses and organizations throughout the country from offering domestic partnership benefits. This approach is not dissimilar to that of the statute recently enacted in Ohio, which bars recognition of same-sex relationships, including marriage.106 The Ohio law also, for the first [*PG618]time, bars state agencies from giving benefits to any unmarried couples, including mixed-sex couples.107 These legislative examples suggest that, in some instances at least, the backlash to the movement for same-sex marriage may exceed the scope of the movement itself. In this climate, an inclusive strategy that advocates diversification of partnership and household recognition, in addition to marriage equality, may offer better protection for the interests of all members of the LGBT community.
The presumed supremacy of married, two-parent families warrants critical examination as same-sex couples legally begin to marry. Some same-sex couples may gain valuable and unique benefits from entering marriage. Other couples, however, will face the sometimes subordinating effect of marriage laws across gender, race, and class lines. The possibilities that some same-sex marriages may receive only qualified guarantees and that marriage may impose deleterious effects for some LGBT individuals108 suggest the modest conclusion that marriage is not a panacea. Translating this significant gain for some LGBT individuals into full equality for all LGBT individuals may require a complicated, progressive approach to marriage advocacy that accounts for the interconnection of marriage laws across gender, race, class, and sexuality lines and that envisions recognition of the specific and varied needs of real households. As political scientist Cathy Cohen writes, “We must . . . start our political work from the recognition that multiple systems of oppression are in operation and that these systems use institutionalized categories and identities to regulate and socialize.”109 Accordingly, a positive vision of more than marriage may serve not only to affirm the “sameness” of some LGBT individuals, but also to challenge the stigma associated with their differences. Moreover, such an approach may make a diverse range of forms of partnerships and households eligible for state and social recognition, a range that recognizes and embraces the reality of a growing number of families and households in our society.