Saturday, June 25, 2011

NY Times June 23, 2011
Marriage Is a Mixed Blessing
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.



J said...

Great article. We have to realize that marriage can sometimes be a straightjacket. I'm waiting for the first gay divorce based on adultery.

Gary Kelly said...

As I read that article, I had a feeling J would comment as he has. I also agree that marriage should be an option and not a requirement.

Pat said...

J. Does the definition of adultery enter into this......legally, is there one? Pat

J said...

Adultery is having sexual relations outside of marriage. In my state buggery is also grounds for divorce. Assuming that these definitions will be fine tuned with the times, I still believe adultery in its broader sense will be grounds for divorce, and will affect such issues as spousal support, child custody and equitable distribution of the "marital estate".

Gary Kelly said...

You get free legal advice on the Dunes, Pat. Hehe.

JustinO'Shea said...

Yes, Pat, free legal advice, along with assorted crackers, biscuits with tepid tea. . . and some assorted occasional eye-candy on the side.

JustinO'Shea said...

Adultery as grounds for divorce has already happened in at least one of the s.s.marriage states. A. was one of several allegations, including 'alienation of affection'.

A lesbian couple had early on become 'the poster children' of the Marriage Equality in that State.

Another lesbian couple from same State made some national headlines in a child custody case, argued in Virginia, I believe it was, in this couple's divorce.

There was another divorce involving two "ministers of religion" - one Episcopal, the other UCC. Aaah yes, these "mixed religion" couples make for testy living. . . LOL (I am not making this up, . nor being disrespectful. .)

J said...

Tepid is it? I should send you a tin of stale biscotti.

gp said...

Methinks the prof is being greedy. My guess is that a large majority of gay people prefer marriage to civil unions or some other equivalent. I'm also guessing that there's no realistic chance that any state government will allow people to choose whichever status they prefer.

Justin Dunes said...

Stale biscoti? OK I'd just dunk 'em in the tepid tea. . hahaha

Gary Kelly said...

Is there a heterosexual equivalent to a civil union? Or is that what is already called a defacto relationship?

JustinO'Shea said...

A "Common Law Marriage". . . don't know if it has the same rights as a Civil Union, tho. . .where's our resident lawyer when we need him? ;-)