Marriage isn’t the half of it

Nancy D. Polikoff, author of "Beyond (Straight and Gay) Marriage: Valuing All Families under the Law," is a law professor at American University.

Four years ago, when San Francisco Mayor Gavin Newsom declared by fiat that the state’s ban on same-sex marriage was unconstitutional, television cameras captured for the whole world the images of gay and lesbian couples inundating the streets outside City Hall. In less than a month, more than 4,000 same-sex couples wed there, until the California Supreme Court stopped the weddings and later declared the marriages invalid. The court said it would willingly hear a constitutional challenge brought in a more orderly fashion.

On Tuesday, the court will follow through on its offer, hearing oral arguments in the cases of 23 same-sex couples seeking the right to marry. Although California has a comprehensive domestic partnership law, gay rights advocates argue that the creation of that separate legal status falls short of the state Constitution’s guarantee of equality.

They’re right. Separate is not equal; it is a mark of second-class status.

But the quest for marriage rights has obscured a more fundamental problem in the law. Marriage is a bright line dividing relationships that matter from those that don’t -- and it shouldn’t be. Retirement and death benefits, hospital visitation and medical decision-making, employee benefits, the ability to use sick or family leave, division of assets when a relationship ends and tax levies are just a few examples of laws granting “special rights” based on marriage.

Marriage is no longer the only way people organize their families and relationships. State-recognized domestic partnerships aren’t a good legal dividing line either. Those just extend rights to a few more people without questioning why such couples have these legal rights in the first place.


The law should value the families and relationships that people value. So a better approach is to ask why a particular law exists and then include within the law all the relationships appropriate to that purpose.

Consider this: On Nov. 12, 2001, American Airlines flight attendant Joe Lopes died in a plane crash near Kennedy Airport. He was survived by a partner of 20 years, Bill Valentine. The couple had met in San Francisco; when Joe was transferred to New York in 1984, they relocated. After Joe’s death, when Bill applied for workers’ compensation death benefits, his claim was denied because he was not Joe’s “surviving spouse.”

Bill’s story is one of many that drive gay rights advocates to fight for access to marriage. Had Joe and Bill been married, they say, Bill would have received these benefits.

But Bill would have received survivors’ benefits if Joe hadn’t been transferred. That’s because California bases entitlement to workers’ compensation death benefits on total or partial economic dependency; marriage is not a prerequisite. That scheme is instructive. The purpose of the law is to compensate for the loss of an economic provider; limiting benefits to married couples frustrates, rather than furthers, that purpose. California should update other laws, such as the ability to sue for wrongful death, with this in mind.

Rigid distinctions in the law between married couples and everyone else are leftovers from an earlier time. Forty years ago, sex outside marriage was often unlawful; children born outside marriage were legal outcasts; husbands and wives had distinct legal roles; divorce was unusual and required one “innocent” and one “guilty” spouse.

The social and cultural changes of the 1960s and ‘70s produced a seismic transformation of the law of marriage. The gender script got torn up. Nonmarital children achieved equality. Marrying became more optional and divorce more ordinary. Laws that continue to single out marriage often bring unwarranted hardship upon people whose family lives do not revolve around that one-size-fits-all model.

Same-sex couples often say they want the right to marry to ensure that they will have decision-making powers for each other in a medical emergency. The purpose of any law in this area is achieving what the patient would want. But privileging marriage doesn’t assure this outcome. A study published in 2006 in the Journal of General Internal Medicine surveyed outpatient clinic patients in Chicago about their choice for a healthcare decision-maker: 33% of married people said they would pick someone other than their spouse.

California has taken one step in the right direction. It is one of a handful of states with a registry for Advance Health Care Directives that identifies a person’s choice of surrogate medical decision-maker. It should next follow Idaho’s lead and issue cards that allow any hospital to access that information by computer immediately. If enough other states follow suit, there will be impetus to create a nationwide registry. Then everyone -- gay and straight, coupled and not, in states that ban same-sex unions and those that allow them -- can have the peace of mind of knowing that their choice of surrogate decision-maker will be respected.

Similarly, workplace policies that truly address work-family balance issues can give employees peace of mind and economic security. Some employers allow workers to use their paid sick leave to aid sick family members -- but “family” is often defined too narrowly. On this issue, the federal government is way out front. Federal employees can use sick leave to care for those “whose close association with the employee is the equivalent of a family relationship.” A law like this meets real needs without carving out “special rights” for marriage or registered domestic partnership.

Unmarried couples of any sexual orientation, single parents and their children, extended families -- and really, anyone who forms relationships of economic and emotional interdependence that aren’t marriage -- deserve laws that value their needs and commitments. Early gay-rights advocates were part of a chorus of voices that supported diverse family structures. This week’s push for equality in access to marriage should not make us complacent about the importance of just family policies for all.