In 1989, Paula Ettelbrick, then legal director of Lambda Legal Defense and Education Fund, and her boss, Tom Stoddard, debated the importance of same-sex marriage for the struggle for lesbian and gay rights. Whereas Stoddard argued “the gay rights movement should aggressively seek full legal recognition for same-sex marriages,” (Thomas Stoddard, “Why Gay People Should Seek the Right to Marry,” Out/Look, Fall 1989, pp. 9-13), Ettelbrick, in contrast, argued that “marriage is not a path to … liberation” and that a more desirable and promising project was “providing true alternatives to marriage and … radically reordering society’s views of family.” (Paula Ettelbrick, “Since When Is Marriage a Path to Liberation?,” Out/Look, Fall 1989, pp. 14-17).
Katherine Franke’s powerful and engaging new book, Wedlocked: The Perils of Marriage Equality, is in the Ettlebrickian tradition of skepticism about the centrality of marriage to LGBT rights. But Franke’s project is different in at least two significant ways. First, Franke provides dramatic historical evidence on how gaining the right to marriage affected freed African-American slaves in the 1860s and thereafter. Franke argues that this historical evidence is deeply relevant to our thinking about same-sex marriage today. Second, unlike Ettelbrick, Franke writes after the stunning success of the quest for marriage equality for LGBT people. As readers of these words surely know, in Obergefell v. Hodges 135 S. Ct. 2584 ), the Supreme Court, ruled that the U.S. Constitution requires states allow same-sex couples to marry. Franke’s project was conceived and mostly carried out before Obergefell, but the book has been recast as a cautionary tale about the risks of same-sex marriage both for individual LGBT people and for the LGBT rights movement. Or, as she nicely puts it, part of Franke’s project is to ask the LGBT community post-Obergefell “[w]hat [we have] gotten ourselves into” (209).
Some of Franke’s continued antipathy towards same-sex marriage stems from her concern that marriage will change LGBT people more than LGBT people will change marriage, in part, because marriage is designed for heterosexuals not for LGBT people. The thought is that when LGBT people marry, we are joining an institution that will constrain us, not empower us. No doubt there is some truth to this concern, but I think Franke overestimates the assimilationist impact marriage will have on LGBT people. There are other social forces besides marriage that have shaped and will continue to shape LGBT people (and heterosexuals, for that matter). Further, marriage is a much more supple and much less static institution than we assume it is. Even setting aside the speedy expansion of access to marriage for same-sex couples since the turn of the century, marriage has radically changed in the past fifty years. For example, it has gotten much easier to get divorced, most (although not all) gender asymmetries in family law have disappeared, cohabitation is now recognized for some legal purposes, procreation is no longer seen as a crucial aspect of marriage, and prenuptial (and postnuptial) agreements are now more common and courts are much more willing to enforce them.
Franke knows this but she remains concerned about marriage for LGBT people in particular because, she says, “as a legal matter, gaining marriage rights really boils down to surrendering the breakup of your relationship to governance by rules set by the state, rather than the ad hoc improvisations that same-sex couples used before they were able to marry” (209). She offers an example of two women in a serious but on-again/off-again relationship for over a decade or so. At one point, in an attempt to repair their relationship, the couple reached an agreement that they would not commingle their finances but that they would live together and contribute to their joint expenses in proportion to their abilities (specifically, the more-moneyed spouse would pay 80% of their household expenses). Subsequently, the couple married and, later, divorced. When the less-moneyed spouse sought equitable distribution of all the marital assets, the trial judge not only awarded her half of all of the couple’s assets, the judge also looked “backward,” past the date of marriage to when the couple started dating (because the couple had functioned as a married couple since that earlier time), and treated the assets over that long time period as subject to equal distribution (209-212).
For Franke, this is a disturbing story that exemplifies how “the pre-scripted roles of marriage—husband and wife—[are] mapped onto gay men and lesbians in ways that reproduce hetero-gendered subject positions” (20). I am much less troubled by this story than Franke is. The judge ignored the parties’ pre-marital oral agreement to keep their finances separate apparently, in part, because they subsequently married and, when they did, they didn’t memorialize their agreement in writing in the form of a prenuptial agreement. It seems reasonable, given this context, to apply the default rules of equitable distribution, that is, unless the parties explicitly contracted around these rules when the relationship was formalized. The same approach would be taken in the case of a similarly-situated heterosexual couple: the default rules of equitable distribution would be applied unless the parties contracted around them in the manner prescribed by the relevant state law. I think this is justified even though, as Franke points out, “[w]hen couples say ‘I do’ they are oblivious to the many legal rules that now govern their marriages…” (9) (This quote continues by saying that couples “can’t just pick and choose” (9) which rules to follow; to a great extent, however, couples can pick and choose, by opting for a pre- or post-nuptial agreement—although relatively few couples do this, especially if this is their first marriage.)
I am a bit more equivocal about the judge’s decision to “back date” the couple’s marriage. Note, however, in many instances, this sort of retroactivity is justifiably applauded by advocates of LGBT rights. Consider a state that didn’t recognize marriage between people of the same sex until Obergefell required it. Now imagine two women in that state who were a couple for decades and who would have gotten married there if they could have. Further, imagine that one of them tragically died the day before Obergefell was decided and that there was some important benefit that the surviving partner would have gotten had they married before the late partner’s death. Here, “back dating” this couple’s marriage seems quite appropriate if there is a plausible way to do so under the law. But doing so in this situations like this seems similar to doing so in the case Franke describes. For various reasons, I favor “back dating” in both cases over not doing so in either.
Returning to the broader themes, in contrast to Franke, I think that it is just as likely that marriage, rather than “heterosexualizing” same-sex couples, is “supple enough to accommodate a new cast of characters” even though they might “bust open marriage’s essentially heterosexual form” (20). Consider two differences between same-sex couples and different-sex couples. First, same-sex couples’ relationships are, on average, more egalitarian than those of different-sex couples in various respects including, most notably, the sharing of household duties and parenting responsibilities. Second, same-sex couples consisting of two men are significantly more likely to have “consensual non-monogamous” relationships, that is, relationships in which they agree on circumstances when it is permissible to have “extramarital” sex. For all we know, same-sex marriages might push the institution of marriage towards being more egalitarian and increase the likelihood that couples will discuss issues of sexual fidelity before either spouse has extramarital sex. Just as many of us of were surprised by the speed that the United States went from 0 to 50 in terms of the number of states that allowed same-sex marriage, so too we might be surprised by the impact this development has on the institution of marriage.
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The most vocal advocates for LGBT rights in the 1970s wanted more than equal treatment for LGBT people; gay liberationists wanted to change the very structure of society, to “liberate the homosexual in everyone.” With respect to marriage, gay liberationists saw it as a sexist and oppressive institution. As Ettelbrick put it, gay liberationists aimed to “transform our society from one that makes narrow, but dramatic, distinctions between those who are married and those who are not married to one that respects and encourages choice of relationships and family diversity.” Franke clearly regrets the loss of the liberationist aspect of the gay rights movement.
I share Franke and Ettelbrick’s view that the gay movement’s foundational liberationist tendencies are important, but I don’t believe the movement gave up on other forms of relationship recognition by seeking marriage through litigation, legislation and a campaign to change public opinion. In fact, recent scholarly work has shown that the quest for marriage equality and the quest for alternative modes of relationship recognition were synergistically intertwined. (See Michael Boucai, “Glorious Precedents: When Gay Marriage Was Radical,” Yale Journal of Law and Humanities, vol. 27, p. 1 [demonstrating the “liberationist” motivation behind early gay marriage litigation in the United States], and Douglas NeJaime, “Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage,” California Law Review, vol. 102, p. 87 [showing the “dialogical” relationship between LGBT rights advocacy for marriage, on the one hand, and advocacy for alternative modes of relationship recognition, on the other].) This complicated history makes me less worried that “[g]aining the right to marry [will create] 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” (13).
That said, I share Franke’s concern that the alternative modes of relationship recognition developed over the past few decades are at risk of disappearing after Obergefell. To use the terminology used by William Eskridge, there is a question whether the non-marital modes of recognition will be “sedimentary,” namely, whether, when a new relationship form is opened up or created (e.g., marriage for same-sex couples) and more benefits are given to certain couples, the old relationship form that gave fewer benefits (e.g., domestic partnerships) will continue to exist. (The question, in other words, is whether the old relationship for will remains as “sediment.”) (See, William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights, p. 121 (2002].) According to Eskridge, sedimentation engenders pluralism about relationship recognition, and this should please advocates of alternative modes of relation recognition. However, Franke is concerned that sedimentation is not a robust phenomenon in the United States and her discussion in the latter part of Chapter 3 provides reasons to think she is right. That said, some jurisdictions have retained alternative forms of relationship recognition even after they have embraced civil unions or same-sex marriage. Colorado, for example, has retained its unique designated beneficiary law (which allows two unmarried people to give each other some or all of a limited set of legal rights, benefits, and protections to make certain decisions about each other’s health care and estate administration as well as treatment in medical emergencies, during incapacity, and at death) even after it passed civil unions and its still retains them after Obergefell. But now that same-sex couples can marry, there is a risk that many alternative forms of relationship recognition that have been created in the past three decades will disappear. And that would be a loss for all of us, not just LGBT people.
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My comments thus far have mostly ignored the original historical research Franke did about the Civil War and Reconstructionist-era marriages of freed slaves. That history is both fascinating and deeply troubling, but I remain mostly unconvinced of its relevance to LGBT rights post-Obergefell. African-American slaves did not have the right to marry anyone. In contrast, lesbians and gay men in the United States, even before Massachusetts became the first state to solemnize same-sex marriages, did have the right to marry: importantly, though, we didn’t have the right to marry the people we wanted to (namely, people of the same sex). Perhaps bisexuals best illustrate the point I am making here. A bisexual could marry some of the people he or she wanted to marry (those of a different sex) but not others (those of the same sex). The contrast between the absolute prohibition on marriage for African-American slaves and the partial—albeit dramatic, immoral and unconstitutional—prohibition on marriage for LGBT people undercuts the analogy at the heart of Franke’s book. Instead, a better (although far from perfect) analogy is to antimiscegenation laws that were common throughout the United States for much of its history.
That said, I learned a great deal from Franke’s book, especially from her discussion of the archival research. Her attempts to connect this history to LGBT rights and explain the different receptions of the marriages of freedpeople in the 1860s and thereafter and the marriages of LGBT people in the 2000s and thereafter are insightful and provocative. I encourage you to read this fine book and to engage with it as I have tried to do here.
Maurice Greenberg Visiting Professor of Law, Yale Law School
Professor of Law & Director, Gertrud Mainzer Program in Family Law, Policy, & Bioethics, Cardozo School of Law
email: Edward.Stein@yale.edu OR firstname.lastname@example.org