NY Times June 23, 2011
Marriage Is a Mixed Blessing
By KATHERINE M. FRANKE
WILL the New York State Legislature ultimately put itself on the right side of history by allowing same-sex couples to marry? Many of us in the lesbian, gay, bisexual and transgender community, amazed at how quickly public opinion has evolved on this issue, are eager for this historic civil rights victory.
My hope comes with some worry, however.
While many in our community have worked hard to secure the right of same-sex couples to marry, others of us have been working equally hard to develop alternatives to marriage. For us, domestic partnerships and civil unions aren’t a consolation prize made available to lesbian and gay couples because we are barred from legally marrying. Rather, they have offered us an opportunity to order our lives in ways that have given us greater freedom than can be found in the one-size-fits-all rules of marriage.
It’s not that we’re antimarriage; rather, we think marriage ought to be one choice in a menu of options by which relationships can be recognized and gain security. Like New York City’s mayor, Michael R. Bloomberg, who has been in a relationship for over 10 years without marrying, one can be an ardent supporter of marriage rights for same-sex couples while also recognizing that serious, committed relationships can be formed outside of marriage.
Here’s why I’m worried: Winning the right to marry is one thing; being forced to marry is quite another. How’s that? If the rollout of marriage equality in other states, like Massachusetts, is any guide, lesbian and gay people who have obtained health and other benefits for their domestic partners will be required by both public and private employers to marry their partners in order to keep those rights. In other words, “winning” the right to marry may mean “losing” the rights we have now as domestic partners, as we’ll be folded into the all-or-nothing world of marriage
Of course, this means we’ll be treated just as straight people are now. But this moment provides an opportunity to reconsider whether we ought to force people to marry — whether they be gay or straight — to have their committed relationships recognized and valued.
At Columbia University, where I work, the benefits office tells heterosexual employees that they must marry to get their partners on the health plan. A male graduate student I know, informed that he’d have to marry his longtime girlfriend for her to get benefits, was told, “Too bad your girlfriend isn’t a man — it would be so much easier!”
They ended up marrying, though they were politically and personally uninterested in doing so. I, by contrast, only had to fill out a form saying that my partner and I lived in the same household, to add her to my policy. An institution like Columbia (which is secular, I might add) should not be in the marriage-promotion business for either straight or gay employees, particularly when domestic partnerships can do the gate-keeping job just as effectively as marriage does.
In fact, New York City has a domestic partnership law that allows both same-sex and different-sex couples to register as domestic partners, and many private and public employers treat employees who are in such partnerships as entitled to the same rights as married employees. But they have done this to rectify the injustice created by same-sex couples’ inability to legally marry. Once the marriage ban in New York State is lifted, domestic-partner couples, both gay and straight, will risk losing access to health care and other benefits if their employers treat marriage as the only ticket for entitlement to these benefits, which are increasingly expensive.
Our phone has been ringing off the hook with calls from well-meaning relatives and friends who want to “save the date” for our wedding once it’s legal. It’s been hard to break it to them that we don’t plan on marrying, though we are glad that many of our friends can and will.
What’s difficult to explain is that for some lesbians and gay men, having our relationships sanctioned and regulated by the state is hardly something to celebrate. It was only a few years ago that we were criminals in the eyes of the law simply because of whom we loved. As strangers to marriage for so long, we’ve created loving and committed forms of family, care and attachment that far exceed, and often improve on, the narrow legal definition of marriage. Many of us are not ready to abandon those nonmarital ways of loving once we can legally marry.
Of course, lots of same-sex couples will want to marry as soon as they are allowed to, and we will congratulate them when they do even if we ourselves choose not to. But we shouldn’t be forced to marry to keep the benefits we now have, to earn and keep the respect of our friends and family, and to be seen as good citizens.
Katherine M. Franke is a professor of law and the director of the Center for Gender and Sexuality Law at Columbia Law School.