Beyond (Straight and Gay) Marriage

Same-sex marriage is an overwrought topic for debate. Should we have same-sex marriage? Is it similar to interracial marriage? Do civil unions suffice? These questions have been the subject of countless histories, social essays, and cultural critiques. In Beyond (Straight and Gay) Marriage leading LGBT family law professor and lawyer Nancy Polikoff makes an urgent case for valuing all families under the law and, she asserts, this has nothing to do with marriage.

Polikoff emphasizes in her book that, "When law makes marriage the dividing line, it harms all unmarried people, including those with children. The harm is the dividing line. The remedy is drawing a different line more closely tailored to achieving the law's purpose." Polikoff reveals exactly where and how that new line should be drawn by detailing the legal terrain cultivated before the fight for same-sex marriage.

Marriage began falling out of fashion in the wake of second wave feminism. Many—though certainly not all—of the legal benefits traditionally tied to marriage have gradually been made available to unmarried people since that time. Polikoff shared her position with millions of others empowered by the larger social equality movements of the 1960s and 1970s to slough off marriage and reorganize their sexual lives. Unlike the fight for same-sex marriage, Polikoff's strategy is a compelling return to the principles of those movements—beginning and ending with equality for all.

So why didn't Polikoff write her book 30 years ago? The answer has to do with today's political climate. As opposed to the 1970s, the current debate over social alternatives to marriage is largely uninformed, no doubt a result of the shift of focus from securing relationship rights for all unmarried people to winning marriage for only same-sex couples.

"I wrote this book now because at least one generation of young adults has emerged at a time when marriage for same-sex couples looked like the only LGBT family issue and when the only problem with marriage appeared to be the denial of access to same-sex couples," Polikoff said. "So I am reclaiming the broader vision of justice for all families and pointing the way towards how to achieve that vision."

Once the national marriage debate sidetracked from the question of whether marriage was actually worth all the commotion, marriage became a quick mess rather than a quick fix. At the close of the 1980s, LGBT legal groups were organized enough to consider the possibility of mounting a case for same-sex marriage. But they had already decided to focus their resources elsewhere when the Hawaii Supreme Court ruled in 1993 that banning same-sex marriage there might violate the state constitution. LGBT legal support quickly took up the cause.

Polikoff continued to believe there was another way. For her, marriage was just another access point—the wrong one policy-wise and the least politically savvy—into a world of benefits needed by unmarried people as well. In the early 1990s the debate in the LGBT legal community was over whether marriage or access to relationship benefits outside of marriage was better for LGBT people. Polikoff believed the latter was ultimately more propitious.

The backlash from the fight for marriage equality proved to be politically disadvantageous. It crippled same-sex marriage legal strategy and took marriage out of the running as a viable option for most same-sex couples. Only then, when same-sex marriage was outright prohibited, did the terms of the national debate over access to marriage switch from crafting the best family policies to judging the worthiness of LGBT people.

"Once the issue of access to marriage was subject to an up or down vote, with national and state DOMAs (Defense of Marriage Acts) and state constitutional amendments, then the up or down vote was about whether gay and straight people are equal or not equal," Polikoff said over email. "And on that vote I will always cast myself with those supporting equality."

The beginning of the path to equality for all families was much more encouraging. In the 1960s and 70s, the definition of family was changing. There were an increasing number of unmarried couples and single parents living with children. In response, feminist lawyers laid the groundwork for a new legal paradigm that was more inclusive and representative of the increasing diversity of family structures. Courts terminated sex discrimination in marriage, expunged the legal status of out-of-wedlock children as "illegitimate," and established "no fault" divorce as a civil right. In the 1980s unmarried couples (same and different-sex) successfully filed for "second-parent adoptions" and "joint adoptions"—newly coined legal terminology at the time. Laws providing adequate health insurance to families, medical decision-making rights to loved ones, and economic interdependence within all sorts of familial configurations at retirement and death soon followed. In 1989 New York State's highest court ruled that Miguel Braschi could remain living in his deceased same-sex partner's apartment because he was family—his partner's spousal equivalent. After centuries of marriage as the door to legal benefits, couples didn't need to be married to gain access to them. They didn't even need to be romantically involved.

But the romance with marriage never fully faded and made the path to valuing all families more difficult. Advocating for marriage has become the central focus of the LGBT rights movement even though family structures have become even more diverse since the 1990s. Why aren't lawyers simply building on legal structures already in place to provide for the needs of all disenfranchised families? Why is today's goal counter to the needs of real families? Why haven't more laws been updated to reflect that reality—as they were prior to the marriage movement? There are no simple answers to these complex social and cultural questions. For Polikoff, they fuel the passion of her real expertise—crafting workable legal solutions that benefit the widest variety of families. Those solutions are the heart of her book.

Strategizing beyond marriage, Polikoff doesn't advocate a one-size-fits-all solution. As a result, her book is a detailed account of previous precedent-setting cases, examples of municipal ordinances that have defied applying legal standards that don't represent their communities, anecdotes of suffering families denied access to legal necessities available only through marriage, and—most importantly—a plan of action. This last component is the most distinguishing feature of her book. Some advocates have earnestly denounced same-sex marriage as a movement priority, but their contributions have been little more than manifestos.

Polikoff's treatise is a carefully considered roadmap. Here's how she explains it in the book: "Under the valuing-all-families approach, states would keep marriage, but give it a new name—civil partnerships—and extend it to same-sex couples. While all marriages/partnerships would not have the same legal consequences, most would trigger specific rules, facilitating straightforward treatment. In addition, states would keep records under a ‘designated family relationship' registration system. People who register would be publicly declaring that their relationship should count as family under laws that now list family members defined only by marriage, biology, or adoption. Beyond that, deciding what relationships would be covered depends on discerning each law's purpose."

Polikoff's argument suggests that acquiring increased legal recognition of non-traditional families is tough, but achievable within a generation, as long as we reconnect the dots to second wave feminism and marriage is removed from its cultural pedestal. She implies, then, that a necessary, and arguably more challenging, task of her plan is to deflate the cultural prejudice—of gay and straight people alike—in support of the continued secular consecration of marriage.

Anyone looking for a way to pop that balloon won't find it in this book. Polikoff tacitly hopes that continued changes in family law will bring about a cultural shift in society's estimation of marriage. That outcome would run counter to the apparent casual relationship Polikoff pinpoints between social equality movements of the 1960s and 70s and initial changes in family law. Regardless of what comes first—the cultural or legal topple of marriage—Polikoff's most insidious opponents may be the LGBT legal groups themselves.

Polikoff feels that the rhetoric LGBT legal groups use to support the fight for same-sex marriage is straight from their opponents' mouths and has trapped LGBT legal groups in the mire of their own sticky argumentation. "LGBT people need to recognize that some arguments put forth for marriage equality borrow from the ‘marriage promotion' rhetoric of a secular and religious right-wing ‘marriage movement' that is anti-gay and anti-feminist and that spreads lies about the importance of marriage in order to further a broad right-wing agenda. I want gay rights groups to stop doing this," Polikoff said via email.

For these groups to drop their promotional language, they'll have to drop their fight for marriage as well—something Polikoff doesn't say in her book. The LGBT legal groups' current argumentation for marriage is antithetical to valuing all families. Although Polikoff supports access to marriage, under a different name, for anyone who wants it, her valuing-all-families approach is premised on the fact that marriage, in its current form, needs to be dismantled. That is not a position shared by any major LGBT legal group. With all the funding directed toward same-sex marriage, gay rights groups probably won't risk losing support from major donors by switching the name of their ultimate legal goal.

Persuading the major LGBT legal groups to join her cause may be harder than rallying the country around her valuing-all-families approach. Polikoff's strategy certainly builds on changes in marriage law, such as property rights, illegitimacy, and no-fault divorce that have been accepted by gay and straight people for some time, but it just as directly rejects much current work done to achieve marriage equality. These LGBT groups are more concerned with fighting for increased shares in the cultural hegemony exerted by marriage rather than fighting for access to legal benefits for more LGBT people.

Perhaps this is why none of the LGBT legal groups have made a statement on Polikoff's book or her valuing-all-families plan. In a phone conversation with Polikoff, she elaborated on the position of those who support marriage equality as promoted by these legal groups and how these supporters feel about the possibility of adapting her plan. "There's a range of how people respond to it. One woman approached me after one of my book talks and said, ‘I agree with your position as a human being, but it doesn't have anything to do with being a lesbian.'"

That is the crux of the problem. These groups' identity-driven approach to politics excludes people who don't identify as lesbian, gay, bisexual, or transgender. Polikoff hopes that their LGBT constituencies will encourage the groups to think more broadly. "As a litigation matter, it looks like we've run out of states to litigate for marriage. So these organizations are going to be looking for new approaches."

For Polikoff, new means back to basics. One way to get there is to form coalitions based less on cultural identities and more on material needs. For example, in place of the tenuous parallels between the argument for interracial marriage and same-sex marriage, couched more in intangible social and cultural zeitgeists than legal argumentation—despite how much LGBT legal groups have tried to run with the latter—Polikoff advocates for coalitions grounded in shared and discrete material needs, such as between elders concerned about medical decision making and any interdependent family unit with the same exact concern. These coalitions once existed but, as Polikoff sees it, marriage gained prominence within the era of identity politics.

Polikoff's key to successful coalitions is to always include unmarried heterosexuals so as not to further entrench marriage as the dividing line between access to and denial of rights. Reformulating legal coalitions in this way may eventually snowball into a family revolution—the influence of which could surpass the identity-driven civil rights movements that initially inspired Polikoff's approach to family law.

Polikoff's well-argued case in Beyond (Straight and Gay) Marriage could become the basis for a new LGBT mass movement. The book's underlying premise is that everyone, regardless of whether they consider marriage and its implied benefits and consequences as a relevant issue to their future, is dependent upon various people at several points in their lives—whether they call those people a family or not. In this way, Polikoff's approach is extremely democratic and practical and affects other areas of social policy as well. The dispensation of family rights determines how taxpayers' money is used to quell social problems such as poverty, lack of education, limited access to childcare and healthcare, and more. (Marriage promotion has been a central tenet of President Bush's welfare plan.)

There are few constituencies that don't have a stake in Polikoff's plan if everyone is to move beyond the marriage question as it now stands. Of course, history is not inevitable. Second-wave feminism never fully became the wave of the future once marriage stole back its momentum. But since history is not preordained, people can change its course, starting with Nancy Polikoff and her book.