A Practitioner’s Reflections on Wedlocked
A Practitioner’s Reflections on Wedlocked
Reading Katherine Franke’s book really got me thinking about marriage and what it has meant and means to the LGBT community. It was very helpful to contrast the experience of our community today to what took place 150 years ago in the community that obtained freedom from slavery. Franke uses the hope of “freedom” to discuss the drive for marriage in both communities. But in reviewing her work, and my experiences as a lesbian activist attorney representing individuals in the LGBT community for the last 35 years, I would characterize this notion of freedom instead as the freedom to “belong.”
When I came out in 1971, the possibility of marriage equality was not even a concept that was discussed in my political circles of lesbian feminists. If marriage was a topic of political discourse, it was only to name it as the “great Satan,” a scheme to force women to be part of the patriarchy, with no real benefits to wives and mothers. However, my friends and I talked endlessly of our families, how to come out, how to be authentic, how to be recognized as ourselves, and whether any of this was really possible.
Later, I went to law school, and eventually went into private practice, working mostly in the LGBT community in the Washington DC metropolitan area. I also taught as an adjunct professor in the graduate program of Women’s Studies at George Washington University and at the Washington College of Law at American University, teaching courses on Women and the Law, AIDS and the Law and Sexual Orientation and the Law. Currently I teach Legal Ethics as an adjunct at WCL, and am a founding partner at Zavos Juncker Law Group, PLLC , which practices family law in the Washington DC metropolitan area.
I look back at the AIDS crisis in the late 80’s and the early 90’s and the clients I represented then – going into hospitals, trying to get partners in to be with dying men, keeping families of origin from taking bodies back to places my clients had fled long ago. I wrote estate planning documents that tried to insure that partners and friends could make medical decisions instead of parents, that possessions, whatever they might be, would go to someone’s chosen survivors. Survivors questioned why they were not recognized for who they were to the men who died.
Then came the Sharon Kowalski case. Her partner, Karen Thompson, was prevented by Sharon’s family of origin from seeing and caring for Sharon after a horrible accident that left Sharon totally incapacitated. A book was published – Why Can’t Sharon Come Home – that turned Sharon’s case into a rallying cry in the lesbian activist community for “family” rights for Karen, and by extension, all of us in the LGBT community. We began to understand that our families were important, that we had a right to legal protections for them, and most crucial, that we had a right to have them.
At the 1987 March on Washington political activism in the LGBT community exploded. Legal organizations focused on establishing rights for lesbians and gay men. Around the same time lesbians began having children as lesbians, and looked for ways to protect their familial relationships, most of which centered on creating legal relationships between a non-biological mother and the couple’s children, and preventing a donor of semen from exerting parental rights.
The issue of creating marriage equality began to be discussed, with lesbian activists declining to support the “great Satan,” and gay men enthusiastically embracing the idea. (Obviously I am talking in broad sweeps here.) See the discussion between Paula Ettelbrick and Tom Stoppard while they were both at Lambda Legal. Eventually this new way of looking at our families morphed into Evan Wolfson’s focus on establishing marriage equality, even with little initial support from many LGBT groups. Soon, there was great enthusiasm for marriage equality in most parts of the LGBT community in the United States.
Before Windsor and Obergefell, my clients were interested in doing their estate planning, their second-parent adoptions, and anything else I could recommend that would protect their families. Those families consisted almost always of a couple and sometimes children at first, and now almost always children. Many of those couples had had a “commitment ceremony” that mimicked a wedding. Then they often entered into a civil union in Vermont. Once marriage became available in Massachusetts, many went there to be married even though their marriages were not recognized in their home jurisdictions or on the federal level. They just wanted to be married.
Why? I don’t think it’s about freedom exactly. I think it’s the freedom to be like everyone else I think it is about belonging. Most of my clients, and many of my friends, wanted to have weddings. I still don’t completely understand it, but there it is. Hundreds of guests, bridal gowns and/or tuxes, in a church or synagogue, the imprimatur of acceptance by society. Even very close friends of mine, long-time activists, had a religious ceremony after marriage equality came to the District of Columbia. My partner and I got married in a three person wedding (think benefits) – us and the judge I clerked for – and after my mother heard about it she was incensed that she wasn’t there. This after Ellen and I had been together for 17 years!
What is all of this about? To some extent I liken this to my clients who had children together, then went through a second-parent adoption. After the adoption was finalized, many of them would say “now I am a real parent.” Not a legal parent, but a real parent. There was something about that legal process that made them feel that they belonged. A chosen family was not enough. Love was not enough. Intention was not enough. They needed a court, part of our social structure, to say they were real parents.
I think it is the same with marriage. No matter what structures we create, nothing is the same as marriage. Marriage is in the fabric of our society – our laws, our distribution of benefits, our legitimacy as families. I am not saying that I agree with this structure, but that is what I see. For most people, that is fine. They want to be part of it. They want their families to be legitimate. They want to belong.
Franke’s comparison of marriage equality now to people coming out of slavery is interesting. I think she is absolutely right about race being a fault line. Leaders in the fight for marriage equality were mostly white gay men. Most activist lesbians were not interested in that fight because, as women, there were many other issues they wanted to address. After sodomy was decriminalized in Lawrence v. Texas, white gay men turned to inclusion in the military and then to marriage equality as the next big issues. The military? Marriage? More belonging.
The advantages of marriage equality were seen as far greater for them than women. Franke shows that the same was true for newly freed Black people. There were so many issues for that community to struggle with, why would obtaining marriage really change its position after slavery? Particularly for lesbians and Black people after the Civil War, marriage was not the answer to most of the discrimination those communities faced.
And yet, people get married when they have the opportunity. Perhaps it’s the distinction between public and private, or between micro and macro. From what I hear from my clients, it’s not about the benefits, or legal protections, although those are nice, it’s about the ring, it’s about the wedding, it’s about the pictures, it’s about the family. So couples marry when they can, and most people long to get married, now, even LGBT couples, and before, people coming out of slavery. Franke says we should be careful what we ask for. I think most LGBT couples got just what they asked for – they want to belong. Marriage equality has given them that opportunity.