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Beyond Marriage: Love and the Law | The Nation

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Beyond Marriage: Love and the Law

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More American women are living without a spouse than with one, recent census data shows, and those who are getting married are better educated and more financially successful than their unmarried counterparts. This paints a liberating picture for American women who can afford to live independently. But for poor single women, lack of access to the wide range of legal and economic benefits that come with marriage is a significant handicap (the US General Accounting Office estimates that there are 1,400 state and federal legal rights conferred upon married couples in the United States). That's why some scholars, legal experts and lawmakers are saying that rights traditionally only offered to married people should be an option for domestic partners, or two family members or close friends whose finances are intertwined. Partnerships like these, rather than marriage, hold many American families together.

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Beccah Golubock Watson
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But what's missing from family policy is "deeply pragmatic and respectful state policy that conforms to the way people actually live their lives," notes Lisa Duggan, professor of social and cultural analysis and head of the American Studies program at New York University. Duggan is a signatory of the Beyond Marriage campaign, which advocates extending rights and benefits to a number of family structures outside the nuclear mold--from two friends or siblings who are each other's primary caregivers to a single adult caring for an elderly parent, to children who are being raised by their grandparents.

Duggan is especially critical of the way that marriage is used--by social conservatives and same-sex-marriage proponents alike--to penalize people who are not married. "Who are the 'irresponsible' people not getting married?" she asks, pointing to new studies showing that poor and black women are more likely to remain unmarried. The way Duggan sees it, those who would most benefit from the rights of married people instead have other family bonds not recognized by the law.

One success story for Beyond Marriage activists like Duggan takes place in Salt Lake City, Utah. In a major win for gay rights advocates, Mayor Rocky Anderson issued an executive order that would provide benefits to the domestic partners of city employees. Not wanting to be upstaged, City Council members went one surprising step further--they wrote an ordinance that allows employees to choose their own "adult designee" to receive spousal benefits. This designee could be a roommate, relative or a domestic partner who lives indefinitely with the employee and is financially connected to the employee (the designee's children are also eligible for the benefits). In a state where residents are in a huff over publicly displayed stickers with rainbow stickmen and where the stigma of polygamy looms large, the unanimous vote by the City Council was a breakthrough in family policy for the entire country. Councilwoman Jill Remington Love said, "Our approach is more fair and addresses the needs of more employees." Despite Utah's Defense of Marriage Act and its constitutional amendment banning gay marriage, a district court ruled in favor of the "adult designee" plan. In his decision, 3rd District Judge Stephen Roth wrote that employee benefits actually have nothing to do with marriage at all, and therefore do not take away from the significance of the institution.

The Salt Lake City "adult designee" plan was successful in part because it establishes economic dependence as the criterion for extending benefits rather than a marital or sexual relationship. The council's goal, expressed by several council members, was simply to get benefits for more families, not to do away with marriage or even suggest its obsolescence. However, some critics worry that going "beyond marriage" will alienate those who cherish marriage and recognize its cultural significance in American society. Additionally, they say, marriage and conjugal domestic partnership are important as legal tools to organize relationships and establish the responsibilities that people have to one another. As Ira Ellman, a visiting professor at Brooklyn Law School, explained in an interview, "The question isn't whether these other relationships are less worthy." It's more that establishing legal binds can be complicated when marriage or sex is not involved.

Ellman, who describes himself as sympathetic to the vision of the Beyond Marriage movement and agrees with many of the specific suggestions in its online statement, nevertheless is concerned that it "paints too broad a brush" over family law. He suspects that nonconjugal commitments could end up being more of an obligation than a benefit. "Say that two close friends live together for three years," Ellman says. "In marriage and domestic partnerships, even when the relationship dissolves, couples still have continuing support obligations. Do we want to say that any property these two friends acquired during the relationship needs to be shared, and that they should have a continuing support obligation?" Another example is the case of wrongful death actions, when a partner sues for damages in the event that the spouse is killed. "If I'm the spouse, I can bring an action and recover the damages. But if my best friend has died, I can't. Do we want to change that? Losing your best friend--I can see how that would be very painful. But there could be many best friends." Kinship ties can get tricky very fast, and the question is, How well will the law protect those with a complex web of relationships?

Nancy Polikoff, professor of law at American University's Washington College of Law and also a signatory to the Beyond Marriage statement, points to what happened in Salt Lake City as an example of how people's economic connection to each other can serve as a way to signify their interdependence and stand in for marriage or sex. "My vision isn't dependent on eliminating marriage. It just wouldn't be the dividing line [for the law]," she says. Polikoff wants the law to treat financially interdependent relationships the same way, whether or not sex is involved. She uses as an example a childless couple who are married but no longer live together--they would still receive all the benefits and rights tied to marriage despite the fact that their relationship lacks many of the things that define a marriage: cohabitation, children, sex. Polikoff brings up the story of the 80-year-old pair of sisters living together in Wiltshire, England, who sued for domestic partner status because they wanted the same rights and benefits afforded to straight and gay domestic partners. "These sisters said, 'Hey, if we were two lesbians, we'd be protected under the law. It's a violation of our right!'"

In response to Ellman's worry about the tangled web of kinship ties, Polikoff allows that some laws will be more difficult to tackle than others. But she points out that, in fact, in many cases US family law already honors relationships outside of marriage. "If a man is married to three different women in his lifetime, each for ten years or more, US tax dollars pay full survivor benefits to each woman" in the case of his death. "We can recognize multiple relationships when we want to." And instead of the "broad brush" that Ellman worries will be applied to the law, Polikoff thinks that each law that is relevant to families should be individually re-examined in light of changing family structures.

In the current issue of the Harvard University publication Gay and Lesbian Review Worldwide, University of Chicago historian John D'Emilio announces that the gay marriage movement has failed. Instead of achieving equality for gay couples and families, he says, it has provoked a virulent countrywide backlash. D'Emilio suggests gay groups should instead fight broader battles like universal healthcare, which he sees as more central to the gay and lesbian civil rights movement, arguing that it "would have decoupled perhaps the most significant benefit that marriage offers." Additionally, D'Emilio writes, universal healthcare would have been a much more viable state-by-state campaign than gay marriage.

The good news is that if D'Emilio is right, and universal healthcare does have a chance in the states, then Beyond Marriage activists have something to look forward to. The two issues share a similar brand of big-tent politics that could attract coalitions as broad as those for the successful living-wage movements in cities. If enough awareness grows about changing family structures, then ideas like electing an "adult designee" might become as American as marriage itself.

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