The New Law of Marriage

The question of marriage equality for same-sex couples used to be an excellent law school hypothetical, but the idea had little purchase in the real world. No longer – the legal issues surrounding the family life of same-sex couples will soon affect the practice of lawyers throughout the United States. Consider the following three events last year:

• 1 The cover story for the July 2004 issue of the ABA Journal was "The Changing Face of Gay Legal Issues," describing how family law practitioners are dealing with issues such as estate planning and property agreements for lesbian and gay couples.¹

• 2 The Wall Street Journal ran an article discussing questions of employee benefits law that arise from the legalization of same-sex marriage in Massachusetts.²

• 3 The New York State Attorney General's office issued an opinion advising that while New York state law does not authorize the issuance of marriage licenses to same-sex couples, "New York law presumptively requires that parties to such unions [from other jurisdictions] must be treated as spouses for purposes of New York law."³

It was 19 years ago – a heartbeat in historical perspective – that the Supreme Court's opinion in Bowers v. Hardwick, which upheld a Georgia criminal law prohibiting homosexual sexual activity, stated that "[n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated."⁴ In 2003, the Supreme Court reversed Hardwick in Lawrence v. Texas,⁵ and the signs of gay families are everywhere. The lesbian and gay rights movement has changed both the law and the vocabulary of marriage. It would be a fool's errand to try to predict exactly how or when the same-sex marriage debates will end, but the easy assumptions of the past have been buried forever.

Meanings of Marriage

The realization that same-sex couples can legally marry triggers a crisis of definition for many people. Indeed, one of the most contested questions in these debates centers on the purpose of marriage. For some, the purpose cannot be separated from the requirement that only male-female unions can qualify, which is often expressed as relating to procreation or children. For others, the core purpose of marriage centers on the commitment between the two partners, which might or might not involve having children.

Changes in the social reality of marriage and family have shifted the dynamics of this debate. Nearly half of American marriages will end in divorce,⁶ and many people remarry later in life.⁷ Second (and third) marriages produce blended families of parents, stepparents, siblings, half siblings, multiple grandparents and complicated family holidays, all of which have become ordinary. And somewhere in that typical but complex family portrait there is often a gay or lesbian couple.

When I founded the ACLU Lesbian and Gay Rights Project in 1986, securing marriage rights for gay couples seemed distant, hardly possible. Now, my lesbian and gay friends who are in couples often refer to themselves as "married"; their comments may be ironic (or rueful), but they are culturally legible. Most of their families treat them and their partners as married when it comes to family gatherings, holiday gifts, and the other small but crucial signals of inclusion. Their wedding announcements may appear in the Sunday paper – not only in New York City, but also in places like Raleigh, North Carolina.⁸ Gay or lesbian couples with children present even more powerful images of family, whether in the media or at a PTA meeting. As a result of all this, a legal definition of marriage or family that insists on invisibility and exclusion is starting to seem rather strange.

Although the opponents of marriage equality claim that history is on their side, the history of what marriage means is also complex. Harvard University historian Nancy Cott has described how social battles over race, religion and gender have been fought on the terrain of marriage law.⁹ Some of those battles have been as sharply contested as the gay marriage debates: in 1958, less than a decade before Loving v. Virginia, 96 per cent...