Nancy D. Polikoff - Beyond (Straight and Gay) Marriage: Valuing All Families under the Law

To my teachers, especially

Horace Ports (in memoriam)

Judith Fetterley

Judith Areen

The history of the LGBT movement has been a serpentine series of crusades to identify and combat the myriad legal discriminations, oppressions, and social proscriptions that faced its constituents. Choosing what battles to fightfor any groupis always a complicated historical and cultural process, and the choices made depend on a wide range of factors. In recent years the battle for marriage equality has become, for many activists, the central struggle of the fight for lesbian and gay rights. This is understandable since marriage equality deals with relationships, legal rights, medical and economic benefits, and sustaining family units. But in the midst of any conflict it is often difficult to see the broader pictureand other options.

Nancy Polikoffs Beyond (Straight and Gay) Marriage: Valuing All Families under the Law is one of the first books to examine, in detail and with a plethora of real-life as well as legal examples, what all families need to survive in a world that is becoming, socially and economically, increasingly harsh and complicated. Polikoffs brilliant and incisive legal analysis cuts through the arguments for and against same-sex marriage recognition to show us that both sides are arguing from a place that misses the larger picture of what all familiesof whatever configurationneed to continue to support themselves and flourish. Drawing on cutting-edge family law, feminist theory, and plain old common sense, Polikoff brings us a vision of how we, as a society, can legally and ethically value everyones desire for family, stability, and security. In many ways Beyond (Straight and Gay) Marriage offers us a vision of the LGBT movement as it grows up to become as mature, inclusive, and progressive as its potential has always indicated it could be.

MICHAEL BRONSKI

Series Editor

Karen Thompson had a problem. Her lover of four years, Sharon Kowalski, lay in a hospital bed, having suffered a brain injury caused when a car operated by a drunk driver collided with her car on a stormy Minnesota night. Because Karen wasnt a family member, the nursing staff would not let her see Sharon; this would be the beginning of a decade-long struggle pitting Karen against Sharons parents over control of Sharons treatment.

Susan Burns had a problem. The divorce decree awarding custody of her three children to their father stated that the children could not visit her if at any time during their stay she was living with or spending overnights with a person to whom she was not legally married. More than four years later, on July 1, 2000, Vermont instituted civil unions for same-sex couples. Susan entered into a civil union with her partner on July 3. When the children spent the night in the home Susan shared with her partner, a judge found her in contempt of court.

Larry Courtney had a problem. His partner of fourteen years, Eugene Clark, did not come home from his job on the 102nd floor of the south tower of the World Trade Center on September 11, 2001. When Larry filed a workers compensation claim, the reviewing agency replied that he did not qualify for benefits, which might instead be paid to Eugenes father, from whom Eugene had been estranged for twenty years.

Lisa Stewart had a problem. At thirty-three, and with a five-year-old daughter, Emily, she was diagnosed with breast cancer, which became terminal. She was unable to continue working as a real estate appraiser and lost her income and her health insurance. Her partner of ten years, Lynn, had insurance through her job, but it did not cover Lisa and Emily. Lisa and Lynn live in South Carolina, which does not allow second-parent adoption, so Lisa is Emilys only legally recognized parent. When Lisa dies, Emily will receive Social Security survivors benefits, but Lynn will not.

A consumer of current news might imagine that access to same-sex marriage is the most contested issue in contemporary family policy, and that marriage is the only cure for the disadvantages faced by lesbian and gay families. Both of these observations would be wrong. The most contested issue in contemporary family policy is whether married-couple families should have special rights not available to other family forms. Excluded families include unmarried couples of any sexual orientation, single-parent households, extended-family units, and any other constellation of individuals who form relationships of emotional and economic interdependence that do not conform to the one-size-fits-all marriage model. No other Western country, including those that allow same-sex couples to marry, creates the rigid dividing line between the law for the married and the law for the unmarried that exists in the United States.

Consider the situations of the people above. Some may see them as evidence that same-sex couples must be allowed to marry. If Karen and Sharon had been married, no one would have questioned Karens right to be Sharons guardian. If Susan and her partner were married, she would not have been in violation of the court order when her children visited. If Larry and Eugene had been married, Larry would have received Eugenes workers compensation benefit. If Lisa and Lynn could marry, Lisa would be covered on Lynns health insurance, Lynn could adopt Emily, and Lisa and Emily would both receive Social Security survivors benefits when Lisa died.

I see these stories differently. Karen was the right choice to be Sharons guardian because she knew Sharon best and was indisputably committed to her, because Sharon progressed when Karen worked with her while she was institutionalized, and because Karen was willing to take Sharon out of an institution and care for her in their home. Susan and her children were entitled to regular visitation to sustain and support their mother-child relationship, and unless her partner was harming the children, the fact that Susan lived with a partner should not have concerned a family court judge. Larry and Eugene were an economic unit; Eugenes death hurt Larry, not Eugenes father. Lisa needed healthcare; her daughter needed legal recognition of the two parents she had; and on Lisas death, Lynn needs survivors benefits to help her continue raising Emily.

I propose family law reform that would recognize all families worth. Marriage as a family form is not more important or valuable than other forms of family, so the law should not give it more value. Couples should have the choice to marry based on the spiritual, cultural, or religious meaning of marriage in their lives; they should never have to marry to reap specific and unique legal benefits. I support the right to marry for same-sex couples as a matter of civil rights law. But I oppose discrimination against couples who do not marry, and I advocate solutions to the needs all families have for economic well-being, legal recognition, emotional peace of mind, and community respect.

Consider the following:

Bonnie Cord graduated from law school and began working at a government agency. She bought a home with her male partner in the foothills of the Blue Ridge Mountains in Virginia. When she applied to take the Virginia bar exama test necessary to obtain the right to practice law in the statea judge ruled that her unmarried cohabitation made her morally unfit to do so.

Catrina Graves was driving her car behind a motorcycle driven by Brett Ennis, the man with whom she had been living for seven years. A car failed to stop at a stop sign and hit Bretts motorcycle; Brett was thrown onto the pavement. Catrina saw the accident, stopped her car, and ran to Brett, who had suffered trauma to his head and was bleeding from the mouth. He died the next day. When Catrina sued the driver for negligent infliction of emotional distress, the court dismissed her lawsuit because she was not related to Brett by blood or marriage.