by Kristin Eliasberg
But amid the celebrations, some legal scholars are pointing out that when it comes to reconciling the law with the complexities of family life, the law still has a long way to go. In an era of frequent divorce and remarriage, not to mention adoption, surrogacy, and artificial insemination, people increasingly organize their personal lives outside traditional matrimony. But almost no legal means exist for formalizing these alternate relationships.
California, Vermont, Hawaii, and New Jersey do currently offer various "marriage lite" alternatives -- partnerships with only some of the benefits of marriage. But these options are open almost exclusively to same-sex couples who cannot legally marry, or in some cases to seniors who want a legally recognized union without complicating existing inheritance and pension arrangements.
What about the younger heterosexual couple who also want intertwined lives without the full economic entanglements of marriage? Or the widowed mother who is economically dependent on the son who is also her sole caregiver? Or the two friends who decide to raise a child together but who aren't, and don't want to be, married? Or the lesbian couple who want their child's biological father to be a recognized part of their family? When is the law going to catch up with them?
Nancy D. Polikoff of American University voices the concern of many family law scholars who support full gay rights but are skeptical of our society's exclusive focus on marriage. "I am in favor of equality and I believe that as long as marriage exists for heterosexuals it should exist for gays and lesbians," she says. "What I don't want to have happen is the eclipsing of a more just reform of how the law deals with families -- all sorts of families."
When it comes to the dizzyingly complicated task of accommodating all possible family arrangements, scholars have long pointed out that one simple mechanism already exists: contract law. Marriage itself, after all, is a contract -- a basic one-size-fits-all arrangement, with some room for customization through prenuptial agreements and the like. Under existing law, couples or larger groups who are unable or unwilling to marry are perfectly free to draw up contracts outlining their mutual rights and responsibilities.
The contract model, however, does have some clear drawbacks. No contract can force employers, the state, or other third parties to provide benefits or recognize the relationship. And most people lack the knowledge and resources to craft a contract that fully protects their interests.
University of Utah law professor Martha Ertman thinks that instead we should look to another area of business law: the rules and regulations governing the formation of corporations and other business enterprises. In the business world partnerships, corporations, and limited liability companies all coexist amicably, with no limits on how many parties enter each association -- and no moral judgment made that one is better than the other. Personal relationships could be similarly codified, Ertman posits, with family law borrowing the rules that govern company models.
Cohabitation, for example, is something like a business partnership.
"A partnership exists when two or more people operate a business together for a profit," Ertman said in a recent interview. "This to me seems like cohabitation, in that you don't make any formal registration with the state."
Instead, two cohabitants could become partners under oral or written agreement. Tax law would treat them as it does business partners -- as related but still distinct entities. And when the relationship ended, something like partnership dissolution rules would apply.
"That would be more fair than assuming cohabitants who are in a committed relationship are [legal] strangers, which is often what happens today when people live together and split up," says Ertman.
Marriage, on the other hand, is more like a corporation, says Ertman.
Both are intended to be ongoing and long-lasting, and both are formulated and dissolved through state action. The analogy "doesn't work perfectly, but you could adjust for the kinds of rules you would want to have," she says.
Ertman's system would even allow for partnerships of more than two people, an arrangement she compares to a limited liability corporations. Under this scheme, she argues, larger groups -- two lesbian parents and their sperm donor, for example, or a "Golden Girls"-like group of retirees sharing a household -- could tailor their partnership contractually, with different members assuming different degrees of responsibility, and receiving different degrees of state recognition and benefits.
American University's Polikoff agrees that today's family law is ill-equipped to deal with the real complexities of today's relationships. But instead of Ertman's different categories of all-in-one relationships, she suggests a more flexible system that would allow people to designate different "partners" for different purposes.
"When you go to a doctor or fill out a form on who to notify in case of emergency you can pick anyone you like," she explains. "The law doesn't insist that you write your spouse's name. I think people should have the opportunity to define for themselves which relationships should count under the law."
Of course, Polikoff says, there are limits to this kind of picking and choosing; it would be a daunting task to designate a different person to fulfill each and every obligation that we now automatically assign to spouses. When individual choice is not possible, she says, the state should decide how to value a relationship based on its function.
For example, many states now allow two-parent adoption by unmarried couples. (Polikoff successfully argued the 1991 case establishing the right in the District of Columbia.) If the state can recognize the function of a parenting relationship between two unmarried adults, she asks, why couldn't it also recognize the functional value of other sorts of unmarried relationships?
Martha Fineman of Emory University law school takes this idea even farther. She proposes a wholesale reconception of the family as a caregiving unit defined by the presence of children or other dependents, rather than by the romantic relationship between two adults.
"If we are concerned with having care provided for people in need -- children, the elderly -- then we should subsidize the caretaker/dependent relationship," she said in a recent interview. "I would take all those subsidies that apply to marriage and apply them instead to the caretaker relationship."
In Fineman's scheme, individuals would not rely on their employer or their marriage status for basic social goods like health insurance and pensions. Instead, as in Europe, these would be provided by the state. And in place of the current marriage regime, Fineman proposes relying on contracts to define intimate relationships as the individuals involved want to define them.
The state would be required to recognize those relationships based on their functionality. For example, the tax deductions currently available to married couples would also be available to other groupings of people who have assumed financial responsibility for each other. And instead of being limited to children and spouses, the Family and Medical Leave Act would also cover employees who need to take care of a sick dependent roommate, friend or other partner.
. . .
These kinds of alternative relationships obviously raise enormous practical -- not to mention fiscal -- difficulties. One of the good things about old-fashioned marriage, after all, is that it provides default rules governing what the two parties owe each other, as well as what the state and other third parties owe them. And in a country that leaves marriage law to the states, a patchwork of traditional marriage here, alternative unions there, could lead to chaos beyond anything following on Goodridge.
But Harvard law professor Janet Halley, author of a number of influential papers and books on family law and gender issues, warns that domestic partnerships and other non-marriage options might, paradoxically, guarantee greater stability to same-sex couples than full-blown marriage rights will. After all, she points out, the conservative backlash has focused mainly on blocking same-sex marriage per se.
"Civil union might deliver more in states that are willing to deem it to be a contract. Marriage, on the other hand, will be extremely risky because of Defense of Marriage Act interstate enforcement," Halley speculates.
Still, Halley envisions a revolution in social organization that reaches way beyond marriage or today's various domestic partnership schemes. "People's basic social safety should not depend on whether they can be in a couple," she says. Civil unions and domestic partnership, in her view, should not become "the next way we fail" to provide basic security to all citizens.
Katherine Franke, codirector of Columbia's Center for the Study of Law and Culture, agrees.
"Not very long ago, there were strong arguments being made in the gay community that if you want to get married, great, but that should be private. The state should not be in the business of regulating who participates in the institution or not," she says. "We seem to have lost the thread of that argument completely. Both the campaign for and the political backlash against gay marriage have in many ways made politically unviable a more progressive or more democratic way of thinking about domestic affiliation."
In other words, same-sex marriage may be revolutionary. But does more need to change than just who is allowed to get married?
Kristin Eliasberg has written about legal issues for the Boston Globe and the New York Times