Is Marriage Equality A Zero-Sum Game?

Katherine Franke’s Wedlocked offers a provocative and cautionary tale about marriage.  Drawing on the decidedly mixed experiences of African-Americans who gained the right to marry following the Civil War, Franke argues that, for gays and lesbians, pursuing freedom and equality through marriage is risky business. Access to marriage, Franke suggests, is likely to be a zero sum game, and achieving it may do more harm than good — both for the lesbians and gay men who embrace it and for those it leaves behind.

The historical chapters of Franke’s book are original and compelling. She shows how the intertwining of marriage and emancipation unleashed a racist backlash during and after the Civil War – a backlash that increased the vulnerability of African American women and children, and conscripted many women into gendered roles that they had little interest in inhabiting.  Franke also shows how the right to marry facilitated coercive state intervention in the intimate lives of the newly emancipated citizens  through aggressive enforcement of bigamy, fornication and adultery laws.  As Franke explains: “Once married, many freed people learned the hard way that marriage and rules and that breaking those rules could be very costly, if not deadly.”  That these interventions were often initiated by other members of the African-American community only exacerbated their negative impact.  Franke’s rich historical analysis demonstrates convincingly that, for African-Americans after the Civil War, the right to marry was a Faustian bargain.

Franke’s efforts to apply this history to the contemporary marriage equality movement are somewhat less convincing. To begin with, those efforts are complicated by the significant and rapid developments that took place during the time it took to write the book. To her credit, Franke acknowledges that the lesson she initially intended to draw – that the success of the marriage equality movement would unleash a backlash of homophobia similar to the post-Civil War backlash against African-Americans — has not come to pass.  Instead, the views of the public on same-sex marriage — like the views of President Obama – have evolved.  The Supreme Court’s Obergefell decision (handed down after the publication of Franke’s book) both reflects and is likely to accelerate this evolution.

So Franke focuses on several other lessons. First, she argues that marriage may have negative consequences for the gay and lesbian couples who opt into it. Second, she claims that marriage may have negative consequences for those members of the gay and lesbian community who choose not to marry and, more generally, for gay identity as a whole.  Third, Franke suggests that the success of the marriage equality movement may have come at the expense of other subordinated groups, particularly African-Americans.  Although Franke has interesting things to say about all three claims, I find her second and third lessons more compelling than her first.

Franke’s first claim is that marriage harbors disadvantages for the same sex couples who succumb to its lure. She argues that marriage provides a gendered script that fits poorly with the realities of same-sex relationships. In particular, she claims that the financial sharing rules that govern the formation and, more importantly, the dissolution of marital relationships are at odds with the expectations of many gay couples, and that efforts by gay spouses to “opt out” of these sharing rules may have negative consequences for women in more traditional, heterosexual marriages.

As a family law professor, I find these concerns unconvincing for several reasons. For one thing, they appear to be based on an outdated understanding of the laws that govern marriage and divorce.  Under the current no-fault divorce regime, the sharing obligations that accompany the dissolution of a marriage are quite thin.  Post-divorce financial sharing (via alimony or spousal support) is the exception, rather than the rule, and long-term support is extremely rare.  And while divorce statutes in almost all states provide for the equitable (but not necessarily equal) distribution of marital property, this generally applies only to property acquired during the marriage and it does not include professional degrees or other human capital assets.  As a result, most divorcing couples have little property to divide.  The most robust family sharing rules today are those that require parents to support their children financially, and those obligations are no longer tied to marriage in any meaningful way.

Perhaps more important, the sharing obligations that are tied to marriage operate as default rules, and couples are generally free to contract around them, either at the time they enter into marriage or at the time a marriage ends. Franke is correct to point out that some states require such opt-out agreements to be in writing (as is true for other types of important contracts), but Franke mischaracterizes the current legal regime when she suggests that gaining marriage rights entails “surrendering the breakup of your relationship to the governance of rules set by the state rather than the ad hoc improvisation that same-sex couples used before they were able to marry.”  Both same-sex and opposite-sex couples are free to negotiate and to improvise, whether or not they decide to marry. To be sure, these negotiations take place in the “shadow” of the law’s default rules.  And what marriage does is switch the default position – from the absence of any financial sharing unless a couple specifically opts to share, to some time-limited sharing, unless a couple expressly agrees otherwise.  To this extent, marriage may improve the bargaining position of a financially dependent spouse at the time a relationships ends, but that is not the same thing as being tied to a gendered script or surrendering the terms of your break-up to the state.

I am similarly unconvinced by Franke’s suggestion that allowing gay men and lesbians to contract out of the default rules of equitable distribution and support “would threaten to undo decades of feminist reform of the law of marriage.” While some feminists have pushed for greater sharing of the financial gains and losses associated with marriage, these efforts have not fundamentally altered the “clean break” philosophy of modern divorce law, and they have generally been accompanied by a healthy respect for the role of voluntary agreements.  Moreover, this argument sounds disturbing similar to claims made by opponents of same-sex marriage that allowing gay couples to marry would somehow undermine their own, heterosexual unions.  In both contexts, the argument seems misplaced.

More convincing is Franke’s second argument that the availability of marriage will disadvantage gay men and lesbians who choose other forms of intimate relationships. As she puts it:  “Gaining the right to marry risks bringing with it the expectation that all in the community conform to traditional notions of coupling, and can have the unintended consequence of making the lives of lesbian and gay people who aren’t in traditional relationships more precarious, not less.”  This is an important concern, and while Franke is not the first to raise it, her historical analysis adds a powerful dimension to the argument.  For example, she shows how, in the aftermath of the Civil War, the newly-won right to marry morphed into a duty to do so, and African Americans who remained in less formal, or more fluid intimate relationships often paid a steep price. Franke suggests a disturbing parallel in recent, post-marriage equality efforts by some jurisdictions to automatically convert existing domestic partnerships into marriages and by some employers to eliminate or limit to married couples benefits they previously extended to non-marital partners.

Franke also suggests that gaining marriage rights may threaten the gay community’s own history and identity. In particular, she claims that marriage threatens “to pull the sex out of homosexuality” and to drive a wedge between acceptable and unacceptable gay lifestyles.  Marriage, she fears, risks shifting “a badge of inferiority from decent same-sex couples – many of whom are portrayed in the media and in legal papers as wanting dignity for themselves and their children that only marriage can confer – to indecent others whose intimate attachments don’t or won’t march politely down the aisle.”  Justice Kennedy’s majority opinion in Obergefell — which contrasts the “dignity” and “integrity” of marriage with the “loneliness” of other family forms — certainly validates these concerns.

Even more provocatively, Franke suggests that the success of the marriage equality movement may have come at the expense of other stigmatized groups, particularly African Americans. She claims that homosexuality in general and the marriage equality movement in particular “enjoy a kind of racial privilege” that has contributed to its success.  “For better or for worse, in some circumstances winning marriage equality has been a zero sum game that has entailed shifting the stigma same-sex couples have endured to other already stigmatized groups, particularly poor African American women and their families.”  These claims are troubling and worth taking seriously. To some extent, they parallel the critique leveled by feminists of color who pointed out that efforts by privileged (white) women to achieve equality in the professional and corporate sphere often depended on the less visible and poorly compensated domestic work of poor women of color.

But access to marriage need not be a zero sum game, and Justice Kennedy does not speak for all supporters of marriage equality. Indeed, as Franke suggests in the Appendix that she captions  “A Progressive Call To Action for Married Queers,” there is much that both gay and straight supporters of marriage equality can do to ensure that marriage remains a right, rather than a duty, and that it augments, rather than displaces, other forms of intimate relationships.  Supporters can resist the repeal of domestic partner benefits programs; they can avoid arguments that disparage non-marital families and non-reproductive sexual activity; and they can link strategies to fight homophobia to other causes such as anti-racist organizing or defending reproductive rights.  Such efforts are made easier by constitutional and family law doctrines that limit the state’s ability to regulate intimate conduct and that protect a far broader range of family and relationship choices than was the case a century (or even a generation) ago. These developments suggest that opening marriage to same-sex couples may have positive, as well as negative externalities, and that both gay and straight progressives have the opportunity (and perhaps the obligation) to help bring about those positive externalities.  In this respect Wedlocked may be as much a call to action as it is a cautionary tale.

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1 Response

  1. Katherine Franke says:

    Professor Jana Singer offers a direct challenge to one set of arguments I make in “Wedlocked,” that is that lifting of the bar against same-sex couples marrying may have the negative, and unintended effect, of undermining some of the progressively distributional rules contained in the current law of divorce and equitable distribution. These rules, I argue, have evolved in such a way as to account for the gendered nature of marriage and as a corrective of the gender-based economic inequality that is often reinforced at the end of a marriage. Professor Singer argues that I overstate the degree to which distributional rules at the time of divorce are guided by a commitment to address gender-based power in marriage specifically, or in the wage labor market more generally.

    In one respect, Singer’s critique of this argument in “Wedlocked” echoes some accounts of why the marriage equality movement gained such success so quickly: marriage rights for same-sex couples represented the logical next step in what has been a decades-long modernization of the rules of marriage, from status to contract. In many respects I suppose Professor Singer is correct, but one of the insights I sought to offer in the book was the notion that gender remains quite sticky in the minds of many family court judges – creating a situation where it is difficult for them to shake loose from the notion that a marriage is made up of a husband and a wife. The anecdotes I offer in the book illustrate the circumstances in which judges interpret two women in a marriage in terms that render one of them a husband and the other a wife – economic disparities and wage labor market power differentials between the two female spouses are looked to to slot one of them in the husband role and the other in the wife role. Any understanding of the nature of their relationship and the agreements they made between one another that do not mirror a husband/wife script are invisible to these judges.

    That all said, Professor Singer’s comments are well-taken and it remains to be seen how judges presiding over same-sex divorces will apply heteronormative presumptions and preferences. Let’s check back in in ten years!