William N. Eskridge Jr. - Equality Practice: Civil Unions and the Future of Gay Rights

Errata for Equality Practice: Civil Unions and the Future of Gay Rights by William N. Eskridge

EQUALITY PRACTICE

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WILLIAM N. ESKRIDGE JR.

ROUTLEDGE
NEW YORK AND LONDON

Published in 2002 by
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Published in Great Britain by
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Transferred to Digital Printing 2011

Copyright 2002 by Routledge

All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including any photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publisher.

Library of Congress Cataloging-in-Publishing Data

Eskridge, William N., Jr.

Equality Practice : civil unions and the future of gay rights / by William N. Eskridge, Jr.

p. cm.

Includes bibliographical references and index.

ISBN 0-415-93072-3 ISBN 0-415-93073-1 (pbk.)

1. Same-sex marriageUnited States. 2. Gay rightsUnited States. I. Title.

Publisher's Note
The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original may be apparent.

CONTENTS

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SAME-SEX MARRIAGE may be an idea whose time is coming. This book is an exploration of the process by which this is occurring in the United States and other developed countries, and of the jurisprudence that either explains or justifies that process. The nation became vividly aware of that process when Hawaii came close to recognizing same-sex marriage, a story told in of these options are available to same-sex as well as different-sex couples. Someday, all such options might be.

I do not intend to present the story told in

To begin with, Americans do not marry with the frequency they once did, and marriages do not last as long. In 1970, there were 1.1 million mul-tiperson households in the United States consisting of persons who were neither married nor related by blood or adoption. In 2000, the figure was 5.5 million. The reluctance of more Americans to marry has occurred during a period in which the state and private employers added more benefits to that status. The divorce rate is more than half of all marriages. This last development is most obviously a joint product of shifting tastes, social norms, and legal regulations. The no-fault divorce rules adopted in the 1970s were both a response to shifting tastes and norms and a factor contributing to higher rates of marital dissolution.

For men and women who do choose to marry, the dynamics of the rela-tionship also changed during the twentieth century. The big change is that many more wives have jobs outside the home in 2001 than in 1901. The working wife was a rarity at the end of the nineteenth century, a commonplace at the end of the twentieth.

The third, and most ironic, trend is that lesbians and gay men probably do not marry in the great numbers they once did. In 1901, most Americans who had erotic feelings for people of the same sex married people of the opposite sex. Although these arrangements usually did not yield happy marriages, they were rational from the perspective of the sexual invert or the homosexual, as such people were termed. State criminal sanctions and strong social disapproval made it hard to find appropriate partners of the same sex, and disastrous to form openly sexual liaisons with them; marriage was not only the path of least resistance, but also the ideal cover for the invert. Also, no one knows how many gay and bisexual men and women are married to persons of the opposite sex, but a reasonable hypothesis is that the percentage is much lower than it was one hundred years ago; most gay men and lesbians today want to be partnered with persons of the same sex.

The foregoing social changes have yielded two different impulses toward traditional legal rules, which focused on marriage as an institution with restricted entry and highly restricted exit. The dominant impulse during the twentieth century has been a liberalization of family law: a greater array of choices for couples seeking state recognition of their relationships and easier exit from the institutions of choice.people want in. The other regulatory impulse has been a traditionalist critique of liberalization: marriage is the only valid form of state recognition, and it has been weakened by the new options for state recognition and by the ease of exit from marriage. The politics of preservation reflecting this impulse has not been able to stop massive liberalization but has been energized by the possibility of same-sex marriage. Paradoxically, the minor (and promarriage) liberalization that would be accomplished by recognizing same-sex marriage has turned into an apocalyptic normative struggle between liberals and traditionalists. In the political arena, the latter usually win, but in winning they have sometimes lost. In the United States and elsewhere, traditionalists have headed off same-sex marriage, but at a cost of proliferation of new state-sanctioned institutions for relationships, sometimes including straight as well as gay ones.

The role of law in this normative struggle between the politics of recognition and preservation has been central and fascinating. Courts and legislatures have been important situses for this struggle. The landmark legal development in the United States, thus far, has been Vermont's recognition of civil unions for same-sex couples in 2000. Civil unions carry with them the same state-created rights and duties of marriage, but not the name; nor are they likely to be recognized in many jurisdictions outside Vermont or under federal law at the present time. This development ought to generate normative anxiety for the politics of both preservation and recognition. For the former, the Vermont law represented a breach in the long-standing refusal of the state to accord official and pretty much equal recognition to lesbian and gay relationships. The law was, as these critics maintained, a symbolic promotion of openly gay relationships (from legally unmentionable to almost normal) and another step in the ongoing decentering of marriage, which had once been the exclusive mechanism for state regulation. For the latter, the Vermont law represented a compromise that was possibly unprincipled and, for some people, reminiscent of the separate but not really equal regime of American apartheid. Metaphorically, the statute could be deemed a linguistic segregation: straight people get the dignity of marriage terminology while gay people come in through the back door of civil unions.