Category: Symposium (Wedlocked)

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Symposium on Wedlocked: Author Meets Readers

In what follows I aim to respond to each of the contributions to this symposium on Wedlocked. As an initial matter let me say thank you to each of your for reading the book, for your rigorous engagement with its arguments and for the gift of intellectual friendship. (Each of these responses also appears as a comment to the individual posts.)

I am delighted by Professor Elizabeth Clement’s engagement with Wedlocked. As evidenced by her “We Are Family” scholarship, she has been tilling some of the same soil that drew my attention in this book. Her review/comment above offers an amazing synthesis of so many of the main arguments of my book and I am enormously grateful for the way she engages it. A question: she suggests that the gay community turned to marriage in the 1970s and in later decades because of insecurity our families experienced on marriage’s outside. I agree – but the book aims to suggest that marriage was not the only legal instrument that might have addressed that insecurity. Many of us in the lesbian community felt other legal forms could create a structure for our families without reproducing the troubling history and gendered nature of marriage. Paula Ettelbrick and Tom Stoddard staged this discussion in their now canonical debate about the wisdom of a marriage strategy in Outlook in 1989. I remember Paula writing the early drafts of that essay in our living room in Brooklyn in 1988, screaming at the legal pad on which she was writing (this was a pre-computer era!) that pursuing marriage was a terrible mistake. So yes, I agree with Clement’s explanation of why turn to marriage, but that doesn’t address the larger historical question of whether there was debate in the community about the wisdom of this approach and what the bases of that debate amounted to. Wedlocked tries to give those now-familiar debate a new context in which to be considered.

Thank you to the historian – pet or otherwise – for taking the book’s history seriously.

Allison Tait offers a generous and generative comment on the arguments I offer in Wedlocked. Your own work is a testament to the rich forms of analysis that the win in Obergefell calls forth – not to deny the legal/political goal of marriage equality, but to consider anew the structural inequalities and historical legacies that continue to reside in marriage itself, notwithstanding the repudiation of its heteronormative limits. Your article, Divorce Equality, 90 Wash.L.Rev. 1245 (2015), takes up the meaning of equitable distribution rules in the era of marriage equality, and your The Return of Coverture, 114 Mich.L.Rev.First Impressions 99 (2016), unpacks the ways in with Justice Kennedy’s reasoning in Obergefell draws from arguments that are, to borrow at term from Eve Sedgwick, kind of “gendery.” This excellent work challenges us to consider whether the win for marriage equality might be premised on a loss for hetero women in marriage. So too, your work reminds us of the ongoing work to be done to dismantle the afterlife of couverture. I look forward to reading where you take us in future work.

For Rick Banks, thank you so much for reading and engaging Wedlocked. I appreciated the arguments you made in your book: Is Marriage for White People? You surely have thought hard about the relationship between marriage, respectability, and the collectively conjured notion/fantasy of a good life at stake in the cultural value we place on marriage.

I suppose I would be less sanguine about the ways in which marriage has become a more egalitarian institution (“the legal structure of marriage is less gendered than ever” and “Throughout the nation, couples lives together and have sex without any fear of prosecution. Enjoy adult content from websites such as https://www.hdpornvideo.xxx/ without fear of persecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.”) Just last month a bill was introduced into the Illinois legislature that would condition the issuance of a birth certificate to a child whose mother is unmarried on the mother naming the child’s father. Specifically, HB 6064 would establish that “if the unmarried mother cannot or refuses to name the child’s father, either a father must be conclusively established by DNA evidence or, within 30 days after birth, another family member who will financially provide for the child must be named, in court, on the birth certificate. Provides that absent DNA evidence or a family member’s name, a birth certificate will not be issued and the mother will be ineligible for financial aid from the State for support of the child.”

This bill – a proposal that has a good chance of being enacted – renders legally invisible a child born to a woman who does not have a husband or some other man who will stand up and claim economic responsibility for the child, treats marriage as the only institutional structure for legitimate childbearing, and reinforces the notion that dependency must be privatized into the nuclear family – since the absence of a birth certificate renders the child and the mother ineligible for public benefits.

So while same-sex couples celebrate the modernization of marriage as an institution that is finally divested of a heteronormative premise, we witness a resurgence of punitive measures brought against low income, largely women of color, whose sexual and reproductive lives are unlikely to satisfy this expectation. As I argue in the book, the win in the Obergefell case was tragically accomplished by redistributing shame from same-sex couples (whose decency is now manifest) to the domain of marital failure represented by the “unwed poor mother of color.” I wouldn’t suggest that this redistribution of shame was a conscious strategy pursued by the advocates of marriage equality, but rather it was a predicable effect of this campaign that we bear a responsibility to account for.

Let’s talk more about this – I appreciate how difficult these issues are, and your book takes them up in a thoughtful and complex way. I am grateful that you have engaged Wedlocked so thoughtfully and look forward to the synergies that our two approaches produce.

Professor Ed Stein’s poignant assessment of the arguments I advance in Wedlocked put pressure in all the rights places. He hesitates to join me in my concerns about the domesticating power of marriage, and is more hopeful than am I that same-sex couples will have the ability to transform marriage more than marriage will transform same-sex couples. On this point I can only say: we’ll have to wait and see. I clearly recall discussing this issue with Paula Ettelbrick and Nan Hunter at the beach in Cherry Grove in the late 1980s, just as Paula and Tom were debating the merits of a marriage equality litigation strategy. Nan, like Ed, was much more optimistic about the power of same-sex couples to transform the deeply gendered nature of marriage. Paula and I were more dubious. On this one, I hope our side was wrong, but I don’t see evidence of it yet.

Ed also points us to Michael Boucai’s and Douglas NeJaime’s new work that seeks to situate the marriage equality campaign in a more radical and complex history. Both of these accounts, to my mind, suffer from distortions that arise when historiography is done with a presentist bias, misreading facts and values in history in light of current meanings. These concerns may say more about me – as I was part of those earlier debates and feel personally attached to them – than they do about marriage and LGBT politics today.

Ed also raises some concerns about the story I tell in the book of a family court judge in New Jersey backdating a divorcing couple’s relationship to the point they started dating, rather than to when they legally wed. He sees a kind of justice in retroactively legitimizing a relationship, particularly in cases where doing so would benefit one of a surviving spouse upon the death of another. “I favor ‘back dating’ in both cases over not doing so in either,” he writes. In response I’d suggest that we not collapse these two cases – one where the parties disagree about when their relationship ought to be governed by the laws of marriage and the other where there is a disagreement between the couple and the state. In the scenario I offer, backdating the marriage at the time of divorce as a form of reparation accomplishes an unjust repair, as the facts do not justify any fair reading that the couple would have married had they been able to at an earlier time. In the example Ed offers the only thing that kept the couple from marrying earlier was a state prohibition from their doing so, thus resulting in an unfair distribution of benefits upon one spouse’s death. Facts here matter, and a wholesale solution that sweeps everyone into marriage’s shadow strikes me as creating its own set of injustices that the law can avoid by undertaking individualized inquiries about the marital intent of the parties in the pre-Obergefell era.

Thank you Ed for reading the book and for engaging it so carefully.

Professor Kimberly Mutcherson’s rich engagement with Wedlocked pushes on what might be one of the most challenging issues I raise in the book: what threat does marriage equality pose to the viability of queer families? In asking this question she provokes us, well really me, to be more precise about what I mean when I deploy the term “queer” – what actually makes a family queer, if not merely reducing the notion to lesbian or gay parents? And given that the ideal of the heterosexual nuclear family has long ago surrendered to the reality of a wide range of family forms, isn’t queer the new norm? (Professor Mutcherson writes: “If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional.”)

In effect, what Mutcherson is highlighting is the way in which queer gets thrown around rather promiscuously these days, and she invites me to be more precise when I figure the win in the marriage equality fight as posing a threat to queerness.

So here are some thoughts: queerness is not a stable identity that ought to be added to the list of categories we protect in law or for whom we create national organizations that fundraise in its name (eg: NGLBTQ Task Force). It is not a hipper version of gay or lesbian that, when rendered as a verb, will somehow “queer” marriage by populating the institution with fabulous same-sex couples.

Rather that approaching law and demanding recognition, queerness inhabit the interstices between forms of legal recognition, gaining its coherence, and in some cases pleasure, from the ways it resists legibility in law’s terms. The examples in the book of families I term “queer” offer a glimpse of this possibility: defying the law’s injunction to organize kinship within a grid of intelligibility, and privilege, that serves larger social interest, such as the privatization of dependency. Queer families are not simply non-nuclear – as Mutcherson suggests – but are made up of attachments of intention, an intention to a kind of subterfuge or irony or exploitation of law’s internal contradictions.

Kim, thank you for this provocation and for your engagement with Wedlocked.

My comments on Professor Kim Mutcherson’s review of Wedlocked, Queering the Family in an Age of Marriage Equality, lead me to Professor Tey Meadow’s reflections, “Our Precious Perversions.” Mutcherson asks what the queer outside of marriage might look like, and Meadow suggests that queerness may be found on marriage’s inside. Meadow wonders aloud of how we might use marriage to “recuperate some of the radical potential of queer kinship,” and notes the frequency with which the media casts a prying eye on married couples who are committed to “polyamory and kink” among other non-normative sexualities. So, Meadow proposes, since marriage is here to stay, let’s see what happens if and when we cultivate perversion within the marital form.

The couple highlighted in Meadow’s review is “A Composer and His Wife,” a white Austrian man and an African American women who have chosen to supplement their marital contract with a kind of pre-, or extra-nuptial agreement: a BDSM contract that structures their marriage through a set of scripts of subjugation, discipline, and punishment. (A recent Note published in the Harvard Law Review explores the enforceability of these sorts of contracts, Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).) This sort of agreement suggests a wide range of interesting readings. Given that the legal and cultural structure of marriage, unmodified by anything like a BDSM contract which can be seen on websites similar to watch my girlfriend, entails power relations and scripts of subjugation, discipline, and punishment, can the addition of the BDSM contract merely amplify what is already going on in a “vanilla-esque” marriage? Or does the component of explicit consent to a relation of power contained in these extra-marital contracts render the power relations within a marriage more just? Is justice, for that matter, a value even relevant to marriage, whether of the modified or unmodified sort?

Returning to Professor Mutcherson’s provocations, should we, or might we consider the composer and his wife’s relationship queer in some way? By the term queer I don’t mean simply strange or odd, but rather self-consciously aiming a kind of subterfuge, irony or exploitation of law’s internal contradictions. Yet the composer and his wife seem uninterested in law, or Law, and instead find old desires satisfied in new ways through the forms of dominance and subjection that structure their life together. That structure doesn’t come from marriage, but from their extra-marital “agreement.” I wonder, as I read the New York Times article (curiously in the Arts section as a music review) about their relationship and why they chose to marry. The husband, Georg Friedrich Haas, the Times reports, has suffered three “failed marriages” and what renders this marriage a “success” is his capacity to “come out” as “the dominant figure in a dominant-submissive power dynamic.”

Actually, I’d rather disassociate the marriage from the BDSM relationship, similar to what can be found websites like www.twinki.xxx here – these are actually two overlapping forms of governance that coexist harmoniously so long as the relationship is working. Yet, once one or the other party wants out, the law of marriage, or even criminal law, will likely trump whatever side agreement they’ve made with one another, and the consent upon which that agreement was premised. What was consensual caning or whipping when things are going well becomes assault, or worse, a hate crime when things fall apart. The law has taken a very dim view of consent in BDSM agreements, refusing to allow parties to consent to what would otherwise be considered assault. (See the Spanner, Twyman and other cases.)

In this sense, the submissive wife in this marriage, Mollena Williams-Haas, consents to her submission in the shadow of the law of marriage and criminal assault, laws that have not evacuated the scene of her subjection, but rather await her summons. Marriage does not serve as a container or holding environment for the celebration of their perverse desires, rather it merely tolerates the forms of power to which they have contracted and stands ready to assert its own form of governance as soon as it is inclined to do so. In this regard, it would not have been surprising to see the Domestic Violence Unit of the Manhattan District Attorney’s office arrest Georg Haas after the Times ran this story. After all, he confessed in print to criminal assault. What is more, feminist reforms to the law have contributed to the law’s capacity to intervene in a marriage to offer “protection” to the more vulnerable member of the relationship – a complaining witness or victim is not necessary to initiate a criminal prosecution in the domestic violence context. For better or for worse, the law would have a very hard time distinguishing between a woman suffering from battered women’s syndrome and Mollena Williams-Haas’s consent to systematic subjugation in her marriage.

Meadow ends the review with the following: “Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.” I want to take this kind of call seriously, but I’m not sure what it means. What lesson, lesson about marriage, should we draw from Haas and Williams’ relationship? What difference does it make that they are married? In what ways does the fact that their precious perversions are taking place in a space governed by the law of marriage hold out any kind of radical re-working of marriage itself? Meadow may share something here with Ed Stein, who in his review of Wedlocked posed the possibility that same-sex couples may rework the meaning of marriage in new and exciting ways.

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!

Michele Zavos brings the eye of a legal practitioner with years of lesbian-feminist activism to her reading of Wedlocked. Given that I wrote the book intending it to be both interesting and accessible to smart non-academic readers I am delighted that Michele has contributed to this symposium.

Michele and I came of age around the same time and we both have watched more radical politics of the 1970s and 1980s evolve into today’s more conventional gay rights movement. The HIV/AIDS epidemic played a critical role in my life, both personally and professionally (most of my career as a litigator before going into the academy was devoted to HIV discrimination cases), just as it did for Michele. The lessons I drew from that period all point in a direction other than marriage: we developed complex and strong families or kin-of-choice during that period, relying not only on a “spousal-equivalent” (remember that term?) for the care that was needed when one got sick, but turning instead to a web of friends, ex-lovers and others. An inability to marry wasn’t what stood between people with HIV disease and their loved ones, rather visceral homophobia and AIDS-phobia posed a much greater threat to our security and care.

To say that the politics of this era “morphed into Evan Wolfson’s focus on establishing marriage equality” papers over the ugly battles that ended in the capture of “our” national organizations by the “freedom to marry” campaign. As I mentioned in my comment to Elizabeth Clement’s contribution to this symposium, I witnessed first hand the toll that that evolution in the LGBT movement took on the likes of Paula Ettelbrick, activists who believed strongly that our work should be focused on shoring up life outside marriage. It felt to Paula and others like a hostile takeover.

I appreciate that Michele may have a somewhat different story to tell about the shift in values in our community. That’s cool. But what Wedlocked aimed to do, among other things, is restore a critical, left perspective on the promise of state recognition. Surely that recognition is something many same-sex couples my want, but our politics ought to aim for something deeper than satisfying what feels good. (I would frame the desire many people in the lesbian and gay community have as a yearning for recognition by the state more than for “belonging” as Zavos puts it.)

Professor June Carbone’s generous and generative reading of Wedlocked poses one of the most difficult questions we face in the post-Obergefell era: What is marriage for? Professor Carbone would surely agree with the position I take in the book, namely that prohibiting same-sex couples from marrying is clearly wrong and ought to be treated as unconstitutional. But agreement on this point doesn’t necessarily entail agreement on the reasoning underlying the unconstitutionality of a ban on same-sex marriage. Nor would it entail agreement on the question of whether marriage remains an institution we ought to fight for and defend now that the Supreme Court has rendered it a more egalitarian institution.

It is these more difficult questions that Professor Carbone’s reading of Wedlocked unearths. Returning to her framing of the question: “What is marriage for?”, the book aims to point out how marriage is necessary to, or “for,” family security if and only if we abandon efforts to render non-marital families more secure. The dissolution of civil union and domestic partnership laws in the aftermath of winning marriage equality contributes to reinforcement of marriage as the best, if not only, means to “make a family.”

Professor Carbone poses an equally challenging question when she asks whether the divorcing lesbian couple I describe (Ruth and Beth) could just as easily be Ruth and Rick – and that the issues I raise about the structures of power in their relationship are similarly at stake in many heterosexual relationships. Carbone pushes this inquiry further to consider deeply gendered assumptions about marriage more generally. “Are,” she asks, “these assumptions still appropriate for anyone’s relationships? What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.”

I’m not sure I agree that marriage is no longer an intrinsically gendered institution. Of course it isn’t for some people, but in many cases marriage seems to exert a kind of gendered gravitational pull on a couple – both same- and different-sex couples – in ways that turn them into “husbands” and “wives” or “Dads” and “Moms.” I watch this pull with same-sex couples of a certain class when they decide to have kids: one stays in the wage labor market and the other stays home to be a full time parent. In ways too complex to unpack here, we may be watching the butch/femme roles that used to characterize so many lesbian relationships transform into wife/husband roles (I deliberately contrasted butch/femme to wife/husband so as to disrupt the idea that butches would become husbands and femmes would become wives. Spousal roles have turned out not to map onto previously familiar identities of butch and femme. Class, rather than gendered or sexual identity tends to drive spousal roles in many cases.)

As I discuss in Wedlocked the fact that marriage transforms two people into one economic unit brings with it certain moral hazards. These hazards include the perverse incentive for one person in the couple to become economically dependent on the economic and legal structure that marriage creates – and in the event the marriage ends, renders that person more vulnerable when they exit the marriage. This person is usually the “wife/mother” regardless of their sex. It is this moral hazard that I think bears attention as we consider how same-sex couples might transform the gendered nature of this institution. Creating circumstances where men can be wives and women can be husbands isn’t the kind of gender radicalism I have in mind, to be sure.

I guess marriage is most appropriately for those couples that want to maintain a deeply gendered relationship. As I end the book: “If those are roles you’re happy with, then marriage is for you. But if you intend to resist their pull, then alternative relationship forms ought to be a viable alternative. In ways as yet under-examined by the lesbian and gay community, to be wed is to be locked into a set of traditions and roles that we had no part in creating and that were not formed with us in mind.”

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Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.

 

The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.

 

The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).

 

This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.

 

Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.

 

This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.

 

Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)

 

One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.

 

Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.

 

Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.

 

The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.

 

At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.

 

LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.

2

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.

1

Our Precious Perversions

It’s a strange time to be a pervert in America. Donald Trump may well be elected the 45th president, running on a platform of protecting the traditional family by rolling back newly-won, sweeping marriage rights for gays and expanding the first amendment to protect outright anti-gay discrimination. At the same time, the New York Times ran a human-interest story last week about an interracial, sadomasochistic relationship involving a well-known musician and Columbia University professor, calling it, blandly, “A Composer and His Wife.”. Just a few years ago, both would have seemed equally improbable, perhaps even farcical. There’s something vertiginous about both the speed of the progress made by gay marriage advocates and the severity and far-reach of the backlash. How do we understand the simultaneous expansion of marriage regimes and the increasing public articulation of “alternative sexualities”? Are they, as many queer thinkers lament, impossible bedfellows? While public discourse about polyamory and kink is all but ubiquitous, we are still unbearably, insufferably held hostage to the marriage discourse. As Katherine Franke has so beautifully elaborated in her new book Wedlocked, marriage, particularly reproductive marriage, is increasingly the sole vehicle through which we can make space in public to talk about sex. That is one of the many unanticipated and vexing consequences of the push to legalize same-sex marriage. It used to be that marriage was “the place where sex goes to die,” but now I think marriage is just, somewhat disappointingly, where sex goes, period. But is that the end of the story?

As a “recovering” lawyer-turned-sociologist, I’ll focus here on some of the more general socio-legal claims in Franke’s book, which press us to approach the current moment with sobriety rather than celebration. As marriage expands its umbrella to shelter the dyadic, reproductive (“homonormative”) gay family, rights to marriage risk ossifying into obligations. Intermediate forms of relationship recognition, like domestic partnerships, begin to fall by the wayside, and a crag separating the legitimacy of the legal marital form for all other forms of kinship widens to a chasm.

Freedom has rules, Franke tells us, and they are not always the ones we might choose if we were in charge of our won freedom (3). History is instructive here. Attempts to force the plurality of kinship ties forged by newly freed slaves into legal, marital families required a series of arbitrary distinctions (for example, which of a succession of female partners would qualify for an emancipation or pension tied to one man’s military service). Coincident with the transfer of African American families from the “private control of owners to the public control of law” (5) was the political sentiment that any kinship tie outside of those marriages was either unimportant or the sign of social pathology. While we may think of marriage as a means of escaping the burden of social abjection (60), marriage regimes themselves produce that abjection. They are self-reinforcing. Communities with weblike, inventive kinship networks, which often serve protective functions for disadvantaged groups like racial minorities or sexual dissidents, are simultaneously invited into the dominant family form and told their existing affiliations are signposts of their unfitness.

I felt a familiar sense of hopelessness reading Wedlocked. As I’ve watched the gay movement rebrand itself from one focused on sexual and gender liberation to a “focus on the family,” I’ve wondered how we might recuperate some of the radical potential of queer kinship. And now, I’m left wondering how we might use marriage, since clearly it isn’t going anywhere, to assist in this project. In that spirit, I’d like to add a point to Franke’s “Progressive Call to Action for Married Queers,” for which I think we might take inspiration from Mollena Williams and Georg Friedrich Haas, the subjects of the Times story I described above.

It’s a rich story with a banal headline: world-famous composer and college professor finds love after three failed marriages—but this is not just any kind of love. Haas, a white Austrian, meets Williams, a black American, on a typical, bland dating site, and they commence a deep, negotiated power exchange, in which Williams submits to serving Haas, to making his life “as comfortable as possible.” Though the text of the Times story is less direct, this is a configuration familiar to those schooled in sexual diversity. Haas is a dominant; Williams is a submissive. He likely controls much of their joint life, and Williams derives satisfaction from being controlled. (This is not conjecture; Williams, a well-known sex educator, writes openly about her submission on her blog, The Perverted Negress.)

http://www.mollena.com

http://www.mollena.com

The rich layers of complexity in such a dynamic are, I’m sure, not lost on this readership: the juxtaposition of a feminist consciousness with female submission, the racialized power dynamics inherent in the configuration, the likely illegality of some of the sexual practices they admit to engaging in (when was the last time we saw the word “caning” in the New York Times?), the fact that such a relationship can also be, and indeed is, a marriage. Yet, while each of the dynamic concerns appears in a single sentence, the word marriage weaves its way through the narrative, the most dynamic portrayal being his failed previous marriages and his journey into this one.

But BDSM, a “compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism” often leans into and not away from the law. It is likely that Haas and Williams have both a marriage contract and an extra-legal bdsm contract detailing the terms of their Dominant/submissive dynamic. And perverts are not the only ones making such creative use of law. Martha Ertman’s new book, Love’s Promises, profiled in an earlier symposium on this blog, describes those used by a range of what she terms “Plan B” families to negotiate the terms of cohabitation and parenting in ways formal law fails to address.

If marriage “cleaves the sex out of homosexuality” (6), we certainly shouldn’t see marriages like this one in the popular press. But, increasingly, we do. And while gays have struggled mightily to distance ourselves from this type of depiction to preserve our standing as viable legal and political subjects, now that we have attained it, perhaps it’s time to let some of that abjection back in. In a context of legal and social exclusion, both racial minorities and non-heterosexual people form a variety of kinship structures that mediate relations of intimacy and of care and dependence. Think, for example, of the “army of ex-lovers” responsible for caring for the first sufferers of hiv/aids. What happens to forms of non-marital intimacy under a marriage regime? They risk disappearing. Perhaps one thing we might do is take a lesson from Haas and Williams and make sure we don’t lose our precious perversions to the marriage discourse.

1

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.

1

“What Have We Gotten Ourselves Into?”: Reflections on Katherine Franke’s Wedlocked

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 [2015]), 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.

* * *

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.

* * *

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.

Edward Stein
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 ed.stein@yu.edu

3

Queering the Family in an Age of Marriage Equality

It was a pleasure to read Katherine Professor Franke’s provocative book, Wedlocked, and an even greater pleasure to be able to engage in this on-line discussion about Professor Professor Franke’s long simmering work. As a lesbian of African descent raising bi-racial children with a Latina co-parent, I came to this book with personal and professional relationships to many of the topics about which Professor Franke writes so eloquently. I left the experience of reading her book with numerous thoughts and questions to which I cannot do justice in a blog post. So, recognizing that I cannot do it all, I’ll use my space to reflect on one piece of Professor Franke’s narrative that resonated strongly with me, which is contemplating how families with children created by lgbt people do or do not radically, or even modestly in some cases, actually queer the idea of family. By this I mean, as I’ll explain in more detail below, just as is true in the context of marriage, being queer and creating a family does not always mean that you have queered the family. In that case, then, I wonder what it means to queer the family in our modern context and, perhaps more importantly, what we gain or lose by couching the narrative of change in the idea of queerness rather than using other language to describe and understand the end of the hegemony of the nuclear family.

My scholarly work exists at the intersection of family law, bioethics, and reproductive justice, with a particular focus on assisted reproduction and how non-coital forms of baby creation can, but don’t always, challenge traditional notions of family and belonging. Consequently, one piece of Professor Franke’s book that deeply resonated with me was her discussion of the ways in which same sex couples engage in a process of queering the family by virtue of how they create families with children. Professor Franke gives 3 such examples, one involving a very open open adoption of an infant by two African-American lesbians who, it appears, have been significantly integrated into the birth family of their child; one involving two white gay men who hired a gestational surrogate with whom they continue to have contact long after their child’s birth (In the interest of full disclosure, like Professor Franke, I am friends with the two men about whom she writes and am thrilled about the family that they were able to create); and another involving a male couple and a female couple who created biological children together and raised those children with the lesbians as primary parents and the men as loved family figures who are not social parents.

Professor Franke offers up these stories to illustrate how gay people, like African Americans (and, of course, these groups are not mutually exclusive), have played with, rejected, and, in some cases, transformed the traditional/nuclear family. She explains, “These three stories are typical of the ‘queerness’ of many families being formed by lesbians and gay men who want children in their lives.” I’m unsure what to make of the quotation marks that she uses around the word queerness, but it is the use of that word that is especially striking to me. I am happy to praise and celebrate the ways in which these families got created with care and deliberation. I also think, though, that it’s critical to recognize the ways in which they might not be all that queer depending on how that word is being deployed. If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional. If we mean something more specific by using the term queer, perhaps requiring parents who identify as lgbt, then all of the families that Professor Franke describes surely qualify, but at that point the designation of queer sweeps in huge numbers of families that are almost identical to traditional family structures save for sex or gender identity. So, what makes two white gay men with financial privilege hiring a surrogate to carry a child for them and maintaining a relationship with that surrogate radically different from a white man and white woman (married or in a serious long-term relationship) making the same decisions? And when I think of the lesbians who are clearly committed to creating a family structure for their daughter that allows her to maintain close ties to her birth mother and her extended family of origin, I read that story not as a queer story per se, or certainly not only a queer story, but as an example of the kinds of extended networks of kin, caring, and community that have so long been a deep part of African American familial traditions extending to those families created by same-sex couples. The story, then, is best told as an intersectional one about how multiple identities shape the families that we create.

That I’ve opted to focus on what perhaps appears to be such a small part of Professor Franke’s broad and exciting narrative may seem out of place or out of touch, but I am fascinated by this question of how we understand what it means to dismantle dominant family structures and conquer familial hierarchies. I share Professor Franke’s concerns about how some of the legal strategies used in marriage equality litigation may actually have damaged those who create what I tend to describe in my work as outsider or marginalized families, rather than queer families. For me, the important dividing line in how families exist in our world is the distinction between families that can be formed by law and protected by law versus those that are treated as anomalous, or inferior, or even thought to be dangerous by some conservative politicians and policymakers. These outsider families are not necessarily radically upending notions of family and thus may not fall neatly into how some think about what it means to queer family. In fact, they may be much more closely aligned with traditional notions of family in many ways, but they are not granted legal legitimacy because they do not wholly track what has long been deemed the norm.

I am deeply mindful of the critical ways in which outsider families can create impacts beyond the circumstances of the individual family members such as in Moore v. City of East Cleveland in which the Supreme Court struck down a statute that excluded certain non-nuclear family units from living together in the City of East Cleveland (in that case, the offending family consisted of a grandmother, her son, and two grandsons) or consider how same sex couples are pushing some family courts and state legislatures to acknowledge more than a two parent dyad for any one child either through legislation or through case law. These are changes that matter and that make it harder to claim that there is one family structure that rules above all others. But, as we push the boundaries of family, as Professor Franke warns in the context of her history of marriage for freed slaves and for lgbt people in our present world, we should be careful what we wish for. We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy. The end goal, or at least one end goal, is to recognize that most orthodoxy about how people choose to wrap themselves in the webs of dependence and intertwinement that family connotes are deeply personal (though not necessarily private) and the job of our laws and policies is to facilitate these personal choices without unjustifiable bias or prejudice. And as the demand for equitable law and policy continues, as Professor Franke makes clear, those demands for protection and acknowledgment can help to de-center marriage in family life, which is almost certainly a good thing for many people.

2

Commentary on Wedlocked: the Perils of Marriage Equality

Commentary on Wedlocked: The Perils of Marriage Equality

By Katherine Franke

 

Wedlocked is undeniably illuminating, thoughtful and provocative. Katherine Franke recovers the post-bellum history of freed slaves’ experience of marriage, a little explored story that stands as a counterpoint to more typical, celebratory accounts of marriage.  The book leverages the 19th century experience of African Americans to raise questions about the 21st century experience of marriage by gays and lesbians and, by extension, everyone else.

While sympathetic to people’s desire to marry, this book is a critique of marriage. It usefully cautions against expecting too much of marriage. Marriage is neither the single key to happiness, nor the means of alleviating economic inequalities or addressing other social problems.  Franke shows how  access marriage and the granting of entry to the institution functions as a clandestine means of social control. The relationship that seems, or promises, to set us free might instead subject us to yet new forms of social control.

In the history that Franke recounts, the freed slaves’ supposed freedom to marry was a mixed blessing.  As Franke notes, “the freedom to marry can quickly collapse into the compulsion to marry.” And so it did for the freed slaves.  Marriage may have undermined freedom as much as it enabled it.  Once freed slaves married, the men became liable for economic support of their women partners; the women became subject to the will of the men.  Far from freedom, marriage in the 19th century meant obligation; marriage subjected husbands to the power of the state, and wives to the power of their husbands.  This history is one of which we should remain mindful.

Of the many issues that this rich book implicates, I raise two. First, the link between past and present .  While Franke repeatedly  (and understandably) disclaims any desire to draw a strong analogy between the 19th century experiences of freed slaves and the 21st century  experiences of gays and lesbians, the book is unavoidably premised on a connection between past and present.  Its very structure poses the question: what can we learn about the present based on what happened in the past? The clear import of the history, in Franke’s view, is to “be careful what you wish for.”

In formulating a stance toward marriage today though, the history is less instructive than one might hope.  What’s most striking is how much marriage has changed between the 19th century and now.  The name, of course, remains the same.  But the legal regulation and cultural understandings of marriage have shifted dramatically. Marriage now entails fewer legal entitlements than ever.  In the 19th century, marriage was the central means of structuring sexual and familial relationships. Sex outside of marriage was criminal. Paternal relationships outside of marriage were unrecognized. And when people did marry, as Franke notes, the law rigidly structured their relationship, with husbands accorded one set of rights and obligations and wives another. The ability to leave a marriage was difficult as both a practical and legal matter.

Now, that 19th century architecture of marriage has fallen away.  The law recognizes and allows that sexual relations will occur outside of marriage.  Prohibitions of adultery and fornication are still on the books yet they are either typically not enforced or are likely unconstitutional. Throughout the nation, couples lives together and have sex without any fear of prosecution. Marriage also is no longer the sole means of establishing a parent-child relationship. One no longer has to be married to be recognized as a father.

Even within marriage, the partners are more treated as autonomous individuals that ever. Premarital agreements are no longer anathema.  Negotiation of the terms of a divorce is commonplace, and indeed is promoted in most jurisdictions.  Too, the legal structure of marriage is less gendered than ever.  Nearly all of the overtly gender based allocations of rights and responsibilities have been wiped away, a casualty of the constitutional prohibition of state sponsored sex discrimination.

Given the demise of the legal rules that channeled people into marriage, being married today is a more a choice and less an obligation.  The significance of marriage now is more cultural than legal. Marriage is more a cultural ideal than a legal institution.  People value marriage even as it’s legal benefits have diminished.

This brings me to my second issue:  What are we to make of the continuing appeal of marriage to most people? Notwithstanding frequent references  to the supposed economic benefits of marriage (including in Franke’s book), the reality is that for the highly educated two earner couples who are most likely to marry, those supposed economic benefits are either slight or non-existent.  Affluent, married two earner couples almost certainly pay more in federal and state income taxes than if they were unmarried. I suspect that for most highly educated, two earner couples that marriage penalty is not offset by other economic benefits.

The paradox of the quest for marriage then is that people desire marriage even as it, quite literally, costs them money, and offers comparatively few of the non-monetary legal rights that it did a century ago. Marriage functions now as a cultural ideal.  What people get from marriage is not legal entitlements so much as cultural cachet, social approval, recognition as having achieved the most admired of family forms.

I wonder then:  is the desire for marriage a form of false consciousness?  One might ask this question of everyone; is the fact that most Americans want to marry (and that some do so repeatedly) a misguided effort , a giving over of oneself to an ideology that is more constraining than liberating, that undermines rather than enables human flourishing?  More pointedly, has the movement for gay and lesbian liberation wrongly succumbed to a domesticated vision of life? Are the gains of the supposed stability of marriage outweighed by the loss of sexual freedom and by the eclipse of alternative forms of family?

When I raise these question with students when I teach Family Law, I am often struck not simply by their rejection of the gay liberation ethos, but instead by how utterly foreign and incomprehensible the questions seem to them.  My students can see a benefit of being young and unmarried but nearly all of them imagine themselves, at some point, as married.  They so take marriage for granted that the idea that a social movement would actively oppose or reject marriage seems to them nonsensical.  As it would to many people outside of law schools. And so, the question: Should  the message to these people, most Americans in fact, be that they are laboring under a form of false consciousness that they would do better to shed?

As fundamental as this question is, Franke seems equivocal about it.  As many of us are.

 

By Ralph Richard Banks

Jackson Eli Reynolds Professor of Law

Stanford Law School

rbanks@stanford.edu

 

 

 

 

1

Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

2

A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.