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BEFORE MARRIAGE:
THE UNEXPLORED HISTORY OF NONMARITAL RECOGNITION AND ITS
IMPLICATIONS FOR MARRIAGE
Douglas NeJaime*
A conventional account of LGBT legal activism draws a sharp distinction
between two eras in LGBT organizing: The first, in which advocates made the
case against marriage, ran from the 1969 Stonewall riots to the Hawaii Supreme
Court’s 1993 Baehr v. Lewin decision. The second, in which advocates made
the case for marriage, emerged in the wake of Baehr and continues to this day.
This Article argues that the conventional account is oversimplified and
incomplete. Through a case study of California in the 1980s and 1990s, it shows
that advocates negotiated a more complicated relationship to marriage. Even as
they challenged marriage’s primacy, marriage structured the substance of that
challenge such that advocates accommodated and accepted the power of marital
norms. Advocates constructed same-sex couples as marriage-like to gain
nonmarital recognition. And their work on nonmarital recognition contributed
to a contemporary model of marriage characterized by adult romantic
affiliation, mutual emotional support, and economic interdependence. This
empirical account does not merely correct the historical record. Rather, by
uncovering the dialogical relationship between marriage and nonmarital
advocacy, it suggests the need to recalibrate the scholarly discourse. The
California case study exposes the difficulty in moving out from under marriage’s
normative weight and consequently casts doubt on frameworks that reject or
drastically minimize marriage. At the same time, it shows how advocates
participated in the shaping of marriage and the married/unmarried distinction,
thereby building the foundation for today’s marriage equality jurisprudence.
* Associate Professor, Loyola Law School, Los Angeles. For helpful comments, I
thank Sameer Ashar, Mario Barnes, Michael Boucai, Courtney Cahill, Erwin
Chemerinsky, Brie Clark, Matt Coles, Scott Cummings, Jon Davidson, Cary Franklin,
Jose Gabilondo, Charlotte Goldberg, Courtney Joslin, Christopher Leslie, Justin Levitt,
Carrie Menkel-Meadow, Melissa Murray, Sasha Natapoff, Sam Pillsbury, Jenny Pizer,
Nancy Polikoff, Jeff Redding, Tony Reese, Jennifer Rothman, Nomi Stolzenberg, Chris
Tomlins, Kathy Trisolini, Howard Wasserman, Michael Waterstone, and Deborah Widiss.
I also thank attendees at Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th
Anniversaries at UCLA School of Law, the Williams Institute Works-in-Progress Series,
and faculty workshops at Loyola Law School and FIU College of Law. Tom Boone
provided exceptional research support. Katyn Evenson, Christine Ro, and Ashley
Spellman supplied invaluable research assistance.
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TABLE OF CONTENTS
INTRODUCTION …………………….……………………………………………..2
I. THE CONVENTIONAL ACCOUNT: FROM THE CASE AGAINST MARRIAGE TO THE
CASE FOR MARRIAGE…………………………………………………………...14
A. Before Baehr: The Case against Marriage...........……….…….………......14
B. After Baehr: The Case for Marriage...……………………….…...………..17
II. THE CALIFORNIA CASE STUDY: NONMARITAL RECOGNITION, MARRIAGE, AND
SAME-SEX COUPLES………………….…………………………………………21
A. Setting the Stage……………………………………………………………22
B.The Origins of Domestic Partnership…..…………………………………..23
C. The Origins of Domestic Partnership Litigation…………………………..26
D.Task Force Work – Making the Case for and against Marriage….........….31
E. Domestic Partnership in the Big Cities...……………..…………….……..42
F. Domestic Partnership in the Private Sector……...………………………..46
G. State Domestic Partnership……………………………………...………...48
IV. UNDERSTANDING MARRIAGE, NONMARRIAGE, AND LGBT ADVOCACY…..52
A. Reconsidering the Case against Marriage……………….…………….….53
B.Understanding the Case for Marriage……….……………………………..54
CONCLUSION……………………………………………….……………………65
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INTRODUCTION
The U.S. Supreme Court is considering two cases focused on the issue of
marriage for same-sex couples. Hollingsworth v. Perry addresses the
constitutionality of California’s Proposition 8, which inserted a prohibition on
same-sex marriage into the state constitution. 1 United States v. Windsor involves
the constitutionality of Section 3 of the federal Defense of Marriage Act
(DOMA), which withholds federal recognition to same-sex couples’ valid, statelaw marriages. 2
The conventional account in legal scholarship suggests that the modern
marriage equality movement, which may culminate with Perry and Windsor, 3
began with the Hawaii Supreme Court’s 1993 Baehr v. Lewin decision. 4 There
the court held that the state’s marriage law, which classified based on sex, must
be subjected to strict scrutiny under the state constitution and accordingly
remanded the case to the trial court. 5 While the organized LGBT movement
warned against the Baehr lawsuit, once the Hawaii Supreme Court ruled,
marriage shot to the top of the movement’s agenda. Accordingly, the
conventional account maintains that advocates built the claims to marriage we
see today in a post-Baehr world.
In this view, before Baehr, advocates were not making the case for
marriage. To the contrary, they were building the case against marriage,
rejecting marriage as a family law model and elaborating alternatives to marriage
for everyone. In this sense, Baehr marked not only a dramatic strategic but also
normative shift in LGBT advocacy, prompting the turn toward marriage both as
a tactical matter and as a desirable LGBT goal. Scholars working in a variety of
fields, including both those who support the marriage equality campaign and
those who take a more skeptical normative view, subscribe to this account of the
trajectory of the case for marriage in LGBT advocacy. 6
1
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert. granted sub nom.,
Hollingsworth v. Perry, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144).
2
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, 81 U.S.L.W.
3324 (U.S. Dec. 7, 2012) (No.12-307).
3
Of course, many LGBT advocates have been pushing a narrower understanding of
Perry, as implicating only California’s law, or at most laws in states that offer
comprehensive nonmarital recognition to same-sex couples. See Brief of Amici Curiae
ACLU Foundation of Northern California et al., Perry, 630 F.3d 909 (No. 10-16696); see
also Plaintiff–Intervenor–Appellee City and County of San Francisco’s Response Brief,
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) (Nos. 10-16696, 11-16577).The Ninth
Circuit struck down Perry in a way limited to California’s situation. See Perry v. Brown,
671 F.3d 1052, 1076 (9th Cir. 2012).
4
852 P.2d 44 (Haw. 1993).
5
Id. at 68.
6
Compare Jane S. Schacter, The Other Same-Sex Marriage Debate, 84 CHI.-KENT
L. REV. 379, 380 (2009 (explaining that “the campaign for marriage began in earnest in
1993”), with Nancy D. Polikoff, Marriage as Choice? Since When?, 21 GAY COMM’Y
NEWS 3 (1996) (“the increased prominence of the right to marry as a goal of our
movement is attributable entirely to the 1993 Hawaii Supreme Court decision”).
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In this Article, I show that the conventional account is oversimplified and
incomplete. Through an original empirical account of LGBT advocacy in the
1980s and 1990s, this Article argues that before Baehr, advocacy aimed at
nonmarital recognition built, rather than opposed, the case for marriage that we
see today.
In this earlier era, marriage constructed claims to nonmarital recognition
and provided the norms that defined domestic partnership. In addition, many
same-sex couples welcomed marriage, both as a legal and cultural matter, into
their lives. In selectively appropriating marital norms to achieve nonmarital
recognition, advocates not only rendered same-sex couples marriage-like but also
contributed to the changing meaning of marriage itself and the increasingly
blurry distinction between marriage and nonmarriage. By appealing to marital
norms to gain nonmarital support, LGBT advocacy shaped marriage in directions
that stressed adult romantic affiliation, mutual emotional support, and economic
interdependence over gender differentiation, procreative sex, and biological,
male-female parenting. Ultimately, advocates cast same-sex couples as
marriage-worthy and contributed to the model of marriage, advanced in Perry
and Windsor, capable of accommodating same-sex relationships.
This Article’s account does not merely correct the historical record. Rather,
it sheds important light on the present moment and offers crucial lessons for the
extant scholarly discourse on marriage and LGBT advocacy. 7 A powerful
scholarly critique sees the marriage equality campaign as conservative,
assimilationist, and detrimental to American families. From this perspective,
LGBT advocates reinscribe the power and prestige of marriage and marginalize
families and sexual affiliations that fail to fit the marital mold. 8 Scholars wonder
how a movement rooted in sexual liberation and determined to protect the
“families we choose” 9 became a movement that chose marriage. 10
7
See Christopher L. Tomlins, Expanding Boundaries: A Century of Legal History,
in A CENTURY OF AMERICAN HISTORIOGRAPHY 78, 89 (James M. Banner, Jr. ed., 2010)
(“history’s promise for law . . . lies in bringing that better-understood legal past into an
improved conjunction with law’s present”).
8
See, e.g., Melissa Murray, Marriage as Punishment, 112 COLUM. L. REV. 1, 59
(2012) (“[t]he self-regulating, disciplined plaintiffs identified by the marriage equality
movement suggest the . . . transformation [of the space between marriage and crime] from
a potential respite from state regulation of sex and sexuality into an annexation of that
regulatory project”); Nancy D. Polikoff, Ending Marriage as We Know It, 32 HOFSTRA L.
REV. 201, 203 (2003) (“By constantly hammering at the injustice of excluding same-sex
couples from the benefits and obligations of marriage, [the marriage equality] movement,
perhaps inadvertently, solidifies the differential treatment of the married and
unmarried.”).
9
See Kath Weston, Families in Queer States: The Rule of Law and the Politics of
Recognition, 93 RADICAL HIST. REV. 122 (2005).
10
See Katherine M. Franke, The Politics of Same-Sex Marriage Politics, 15 COLUM.
J. L. & GENDER 236, 239 (2006). See also SHANNON GILREATH, THE END OF STRAIGHT
SUPREMACY xi (2011).
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The conventional account of marriage’s trajectory in LGBT advocacy
structures and gives meaning to this critique. For marriage skeptics, the shift
from the pre-Baehr politics that purportedly animated nonmarital advocacy in
the 1980s to the marriage-centered movement that began to emerge in the mid1990s is a story of missed opportunities. 11 Had advocates continued to make the
case against marriage, the regulatory regimes of family and sexuality would look
drastically different today. It is not too late, these scholars suggest, as they urge
advocates to reclaim their radical roots and reintegrate pre-Baehr models of law
reform into today’s advocacy.
Some of these critics already have set their sights on a post-marriage
equality world. 12 Given the Supreme Court’s intervention this term and the
growing sense of the inevitability of same-sex marriage, it is an especially
crucial moment in which to understand both the forces that constrained paths
leading away from marriage and the possibilities that marriage may offer as
same-sex couples gain inclusion. The account in this Article shows that
marriage critics give LGBT advocates both too much agency, suggesting they
could escape marriage’s power if only they tried, and too little credit, obscuring
the ways in which advocates shaped marriage and the married/unmarried divide.
Contrary to other accounts of pre-Baehr activism, this Article recognizes
the specific LGBT contributions to marriage itself. Advocates in a post-Baehr
world did not simply inherit a model of marriage shaped by other movements,
but in fact they participated in that shaping – along with civil rights activists,
women’s rights advocates, and sexual liberty proponents. Crucially, LGBT
advocates shaped marriage through work entirely outside of marriage, suggesting
that family law and sexuality scholars look to nonmarital spaces not simply to
appreciate the regulatory reach of marriage but also to understand how the
content and meaning of marriage itself is produced. Indeed, looking at marriage
construction through nonmarital work suggests that marriage can be a dynamic
and promising locus of sexual and familial progress, rather than a static and
conservative institution. Ultimately, this Article exposes both the power of
marriage on social movements and the power of those movements to shape
marriage.
This Article proceeds in three Parts. Part I lays out the conventional
account of the trajectory of marriage in the LGBT movement. This account
draws a sharp distinction between the pre-Baehr era of LGBT organizing, which
11
See, e.g., Katherine Franke, Public Sex, Same-Sex Marriage, and the Afterlife of
Homophobia, in PETITE MORT 156, 157 (Carlos Motta & Jonathan Lubin-Levy eds.,
2011) (arguing that advocates could have focused on sexuality that is “not private, does
not entail property relations, is not matrimonial, does not take the couple form, and is not
necessarily enduring”); Murray, supra note 15, at 433 (arguing that instead of finding
common ground with “single-parent-headed families, families that include or rely upon
extended families or fictive kin, urban ‘tribes’ of friends, and polyamorous groups, to
name a few,” advocates distanced same-sex couples “from the deviant families who have
willfully elected to live outside of marriage”).
12
Melissa Murray, Paradigms Lost, N.Y.U. REV. OF LAW & SOC. CHANGE at *14-16
(forthcoming 2013).
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BEFORE MARRIAGE
5
worked against and outside marriage, and the post-Baehr state of organizing,
which continues to work toward marriage. 13 As part of the radical LGBT
politics emerging from the 1969 Stonewall riots, “marriage,” as Nancy Polikoff
explains, “was part of the problem, not part of the solution.” 14 In this account,
LGBT advocacy over the following two decades translated early radical
commitments into law reform efforts. Advocates located lesbian and gay
families in a broader framework of rights and recognition outside marriage,
focusing, in Melissa Murray’s description, on “‘queering’ the family – creating
meaningful alternatives to the traditional families from which they were legally
excluded.” 15 Domestic partnership in the 1980s, available regardless of sexual
orientation, attests to the success of this strategy and the pervasiveness of its
underlying normative commitments. 16
In this account, Baehr prompted a sweeping strategic and normative shift in
LGBT advocacy. As Polikoff claims, once Baehr opened the door to “the
plausibility of legal arguments for same-sex marriage, the framework of family
diversity was no longer the only basis for seeking protections for gay and lesbian
relationships and families.” 17 In this view, advocates began to embrace marriage
as the central movement goal and reconceptualized domestic partnership as a
stepping stone to marriage.
Part II constitutes the heart of this Article, furnishing an original empirical
account of nonmarital relationship recognition that challenges key assumptions
that animate not only the conventional account of marriage in LGBT advocacy
but also the current scholarly discourse on family and sexuality. 18 I construct a
case study of California from the early 1980s through the late 1990s. 19 The
13
See, e.g., Nancy D. Polikoff, “Two Parts of the Landscape of Family in
America”: Maintaining Both Spousal and Domestic Partner Employee Benefits for Both
Same-Sex and Different-Sex Couples, 81 FORDHAM L. REV. 735, 758 (2012) (arguing that
LGBT advocates deploy “a cramped vision of family that distances the gay rights
movement from much of its earlier advocacy”).
14
Nancy D. Polikoff, Equality and Justice for Lesbian and Gay Families and
Relationships, 61 RUTGERS L. REV. 529, 532 (2009).
15
Melissa Murray, What’s So New About the New Illegitimacy?, 20 AM. U. J.
GENDER SOC. POL’Y & L. 387, 433-34 (2012).
16
See Polikoff, supra note 14, at 532.
17
Id. at 83.
18
The case study employs a social movement lens. For scholarship in a similar vein,
see Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of
Intellectual Property, 117 YALE L.J. 804, 809 (2008); Lani Guinier, The Supreme Court,
2007 Term—Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4, 57-58
(2008); Reva B. Siegel, Constitutional Culture, Social Movement Conflict and
Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1329
(2006); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on
Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2065-66 (2002);
Robert Post & Reva Siegel, Originalism as a Political Practice: The Right’s Living
Constitution, 75 FORDHAM L. REV. 545, 570 (2006).
19
Scott Cummings and I constructed an empirical account of California marriage
equality advocacy between 1999 and 2008. See Scott L. Cummings & Douglas NeJaime,
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concept of domestic partnership traces its roots to California. The state
constituted a significant movement front, and advocates were incredibly
successful as compared to other states. Developments in California impacted
events across the country, as municipal and state lawmakers attempted to
replicate California’s innovations. Today, of course, California continues to
serve as a central site for LGBT activism, and in Perry the Supreme Court is
poised to decide the fate of California’s constitutional ban on marriage for samesex couples.
Through a close reading of the record, including task force reports, local
ordinances, municipal studies, state legislation, employer policies, insurance
determinations, judicial decisions, legal briefs, advocates’ statements, and media
coverage, I provide an original historical account that reveals a more
complicated and contested picture of marriage in earlier LGBT advocacy. A
close analysis of early local activism – missing in most accounts of LGBT rights
work 20 – produces a more accurate understanding of the trajectory of nonmarital
recognition and its relationship to marriage and, at the same time, fills a
substantial gap in the literature by providing the first genealogy of domestic
partnership.
The California case study supports two central claims that disrupt the
conventional account of LGBT advocacy and marriage. First, advocates used
marriage to construct the terms of nonmarital recognition. That is, contrary to
common assumptions, advocacy did not exist outside the regulatory reach of
marriage and did not simply resist and challenge marriage. Couples received
rights and benefits precisely because they looked like married couples. Second,
in constructing nonmarital recognition in reference to marriage, advocates
blurred lines between marriage and nonmarriage and shaped marriage in ways
consistent with norms of lesbian and gay family life. Therefore, in both
constructing unmarried same-sex couples as marriage-like and emphasizing
marital norms that embraced, rather than rejected, same-sex relationships,
advocates built the case for marriage that we see today.
Ultimately, the case study demonstrates that Baehr did not produce the
sweeping shift commonly assumed. Instead, close attention to earlier state and
local organizing reveals that the anti-marriage element that traces its roots to
Stonewall operated in tandem with a pro-marriage element that foreshadowed
and laid the groundwork for the post-Baehr world. Rather than simply reject
marriage, advocates in the 1980s and early 1990s supported the privileging of
marriage even as they challenged marriage’s role in the distribution of rights and
benefits. Ultimately, continuity, rather than disjunction, best characterizes the
path to marriage in the LGBT movement.
Lawyering for Marriage Equality, 57 UCLA L. REV. 1235 (2010). This Article
undertakes similar work, though with different normative aims, for the era between 1980
and 1999.
20
But see Barbara Cox, Alternative Families: Obtaining Traditional Family
Benefits through Litigation, Legislation, and Collective Bargaining, 2 WIS. WOMEN’S
L.J. 1 (1987).
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Part III explores the implications of the California case study for legal
scholarship on family, sexuality, and LGBT advocacy. The conventional
historical account detailed in Part I structures the scholarly discussion,
illuminating critiques of marriage equality advocacy, supporting broader
arguments against marriage as the privileged site for legal recognition of family
relationships and sexual affiliations, and bolstering prescriptive claims urging
the turn away from marriage in LGBT advocacy. 21 To support their normative
and prescriptive claims, scholars invoke the conventional account of LGBT
organizing, suggesting that had advocates remained committed to the earlier
vision that animated their work, the current landscape would look drastically
different.
The California case study provides an important corrective and injects an
element of pessimism into scholarship critical of marriage. First, the case study
exposes the difficulties in claiming space outside of marriage and reveals the
constraints that marriage imposed even on those seeking to challenge its
primacy. Second, it demonstrates that a powerful element of LGBT advocacy
conditionally embraced, rather than simply rejected, marriage. Many advocates
– and their constituents – envisioned a marriage regime that included same-sex
couples. Ultimately, this Article’s analysis pushes us away from normative
models and prescriptive claims that seek to escape marriage’s legal and cultural
weight.
Yet, at the same time, the California case study points toward optimistic
implications, revealing marriage’s more dynamic and productive character. For
marriage critics, marriage is a relatively static institution, subject to the same
critique understood to animate earlier organizing. 22 The case study, however,
demonstrates not only that marriage is dynamic, 23 but also that LGBT advocates
participated in shaping it. Even as marital norms structured the terrain on which
advocates operated, those norms were shifting. Advocates, in turn, seized on and
advanced those shifts, mapping same-sex couples onto a model of marriage
increasingly characterized by adult romantic affiliation and economic
interdependence. At the same time, advocates harnessed and developed the
increasing blurriness between marriage and nonmarriage. Ultimately, by relying
on marital norms to gain nonmarital recognition, advocates constituted those
21
See NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE 132 (2008);
MICHAEL WARNER, THE TROUBLE WITH NORMAL 87 (1999); Katherine M. Franke,
Longing for Loving, 76 FORDHAM L. REV. 2685, 2686 (2008).
22
See William N. Eskridge Jr., Family Law Pluralism: The Guided-Choice Regime
of Menus, Defaults, and Override Rules, 100 GEO. L.J. 1881, 1963 (2012) (“A central
mistake of this particular critique is its tendency to treat marriage as a static institution –
when in fact it is highly mobile, having changed dramatically in the last century and even
more in the new millennium.”).
23
On the history of marriage, see STEPHANIE COONTZ, MARRIAGE, A HISTORY
(2005); NANCY F. COTT, PUBLIC VOWS (2000). In the context of same-sex marriage, see
E.J. GRAFF, WHAT IS MARRIAGE FOR? (1999); Suzanne B. Goldberg, A Historical Guide
to the Future of Marriage for Same-Sex Couples, 15 COLUM. J. GENDER & L. 249, 25153 (2006).
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norms in ways that make possible the claims to marriage we see today. The
analysis of contemporary marriage equality jurisprudence in Part III illustrates
this trajectory. Courts accept LGBT advocates’ marriage claims based precisely
on the marital norms that advocates invoked to construct nonmarital regimes.
And they reject rationales offered to support restrictive marriage laws by
appealing to the rights granted to nonmarital relationships, including those
formed by same-sex couples.
I. THE CONVENTIONAL ACCOUNT:
FROM THE CASE AGAINST MARRIAGE TO THE CASE FOR MARRIAGE
A conventional account of LGBT legal organizing and marriage draws a
sharp distinction between activism before and after Baehr, the Hawaii Supreme
Court decision signaling the legal possibility of marriage for same-sex couples.
In this account, before Baehr, LGBT advocates built the case against marriage,
but in a post-Baehr world advocates began to build the case for marriage. This
Part elaborates the dominant narrative, which is common among both critics and
supporters of the marriage equality campaign and informs and structures
important scholarly discussions in family law and sexuality. 24
A. Before Baehr: Making the Case Against Marriage
The conventional historical account traces LGBT activism in the years
leading up to the Hawaii litigation to the radical, liberationist politics emerging
from the 1969 Stonewall riots. 25 As Polikoff, one of the most influential
marriage critics, explains, activists resisted the regulatory force of marriage,
arguing that marriage “channeled everyone into only approved relationships, . . .
regulated the lives of men and women along gender lines, and . . . policed the
boundary between acceptable and unacceptable sexual expression.” 26
24
Of course, not all scholars make these historical claims in such stark terms. For
instance, William Eskridge has devoted substantial attention to marriage lawsuits before
Baehr. See WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR
BETTER OR FOR WORSE? 16-17 (2006). And Jane Schacter notes that “[w]hile there was
not much of a national same-sex marriage movement before Baehr, the idea was not
unknown.” Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality
Litigation, Then and Now, 82 S. CAL. L. REV. 1153, 1212-13 (2009). Nonetheless, the
push for same-sex marriage before Baehr – and in fact even Baehr itself – were not
movement-backed, and the account detailed here is one that focuses on the organized
LGBT movement.
25
For a description of the Stonewall riots, see JOHN D’EMILIO, SEXUAL POLITICS,
SEXUAL COMMUNITIES 231-32 (1983). While Stonewall is credited with sparking the
LGBT movement, mobilization around lesbian and gay identity emerged after World War
II, with the 1950s formation of the Mattachine Society and Daughters of Bilitis. And as
historian John D’Emilio shows, the pre-Stonewall movement experienced internal radical
challenges in the 1960s that laid the groundwork for its post-Stonewall counterpart. See
D’EMILIO, supra note 25, at 158-75.
26
Polikoff, supra note 14, at 532. See also Mary Ziegler, Defining the Parental
Rights of Same-Sex Spouses, JURIST – Forum, Jan. 14, 2012,
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This historical claim finds significant support in accounts of the Gay
Liberation Front (GLF), which emerged in the wake of the 1969 Stonewall riots.
GLF’s 1971 Manifesto argued against the very notion of the marital family. 27
GLF leaders sought to “expose the institution of marriage as one of the most
insidious and basic sustainers of the system.” 28 As GLF activist Ralph Hall
argued, same-sex marriage would “imitat[e] meaningless, bad habits of our
oppressors . . . .” 29 Instead of embracing marriage, Hall urged lesbians and gay
men to “attack the marriage system.” 30
The conventional account suggests that advocates translated their radical
impulses into legal and political claims made outside the register of marriage.
As Kath Weston recounts, “during the 1980s . . . lesbians and gay men . . . began
to speak widely of chosen families” and to seek “legal protections” for those
families. 31 They worked, in other words, to “queer the family.” 32
Therefore, the law and policy efforts in the 1980s are remembered for
seeking alternatives to, rather than substitutes for, marriage. Murray, a
prominent marriage critic, argues that local domestic partnership ordinances in
the 1980s “were not intent on mimicking marriage” but instead “consciously
framed [domestic partnership] as distinct from – and less than – marriage.” 33
Similarly, Polikoff focuses on task forces in California to chart the
prevalence and impact of marriage resistance. 34 The results illustrate a
functionalist model that abandoned marriage as a meaningful distinction and
instead attempted to match legal regulation and rights to individuals’ lived
realities:
The Los Angeles report urged government to define families to
reflect the way people actually live . . . . It recommended
flexible definitions of family, a ban on marital-status
discrimination, and domestic partnership status for two people
http://jurist.org/forum/2012/01/mary-ziegler-parent-rights.php; Shannon Gilreath,
Montana Case Shows Split in Gay Rights Movement, JURIST – Forum, Dec. 14, 2011,
http://jurist.org/forum/2011/12/shannon-gilreath-gay-liberation.php.
27
See Gay Liberation Front: Manifesto 1 (1971, rev. 1978). Other efforts at the time
conceptualized marriage within a liberationist agenda. In 1972, the National Coalition of
Gay Organizations advocated “[r]epeal of all legislative provisions that restrict the sex or
number of persons entering into a marriage unit and extension of legal benefits of
marriage to all persons who cohabit regardless of sex or numbers.” Demanded by the
National Coalition of Gay Organizations (State Demand Number 8) in February 1972,
quoted in WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE 54 (1996).
28
Gay Revolution Comes Out, RAT, Aug. 12-26, 1969, at 7.
29
Ralph Hall, The Church, State and Homosexuality: A Radical Analysis, GAY
POWER, no. 14 (1970).
30
Id.
31
Weston, supra note 9, at 130.
32
Angela P. Harris, From Stonewall to the Suburbs?: Toward a Political Economy
of Sexuality, 14 WM. & MARY BILL. RTS. J. 1539, 1568 (2006).
33
Murray, supra note 12, at *11.
34
See Polikoff, supra note 14, at 532-33.
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who lived together and shared the “common necessities of
life.” 35
For Polikoff, “the early-1980s push for domestic partnership – available
regardless of sexual orientation – made marriage matter less.” 36 Indeed, Polikoff
claims that throughout that decade “[a]dvocates and employers alike did not
distinguish between those who could not marry and those who chose not to
marry,” 37 such that recognition of unmarried different-sex couples and same-sex
couples were “two sides of the same coin.” 38 Furthermore, the inclusion of nonintimate relationships suggested a rejection of the marriage paradigm. 39 The Los
Angeles Task Force on Family Diversity included “two people . . . shar[ing] the
‘common necessities of life,’” rather than requiring romantic affiliation. 40 In
sum, the conventional account suggests that LGBT advocacy in the 1980s and
early 1990s – before Baehr – made the case against marriage not merely for
lesbians and gay men but all families.
B.After Baehr: Making the Case for Marriage
While social movements on both the left and right directly engaged
marriage over the second half of the twentieth century, LGBT advocates did not
officially enter the marriage fray until the 1990s. Although same-sex couples
challenged their exclusion from marriage throughout the 1970s, their lawsuits,
which were uniformly unsuccessful, 41 were not led by movement lawyers. 42
Indeed, Lambda Legal Defense and Education Fund (now Lambda Legal) did not
form until 1973, the year after the Supreme Court dismissed a same-sex couple’s
appeal in a marriage lawsuit. 43 And other leading LGBT legal organizations
sprung up throughout the late 1970s and 1980s. 44
Into the 1990s, LGBT advocates warned against litigation challenging
marriage laws. 45 During that time, movement leaders vigorously debated the
35
Id. See also POLIKOFF, supra note 21, at 55.
See id.
36
Polikoff, supra note 26, at 532.
37
See Polikoff, supra note 13, at 738.
38
Polikoff, supra note 26, at 532.
39
See Schacter, supra note 6, at 392-93.
40
See POLIKOFF, supra note 21, at 55.
41
See Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973); Singer v. Hara,
522 P.2d 1187, 1197 (Wash. Ct. App. 1974).
42
See POLIKOFF, supra note 21, at 48.
43
Lambda Legal, History, at http://www.lambdalegal.org/about-us/history (last
visited Jan. 5, 2013).
44
See Douglas NeJaime, Inclusion, Accommodation, and Recognition: Accounting
for Differences Based on Religion and Sexual Orientation, 32 HARV. J. L. & GENDER
303, 320 (2009) (noting that Lambda Legal formed in 1973, the National Center for
Lesbian Rights in 1977, Gay & Lesbian Advocates & Defenders in 1978, and the ACLU
LGBT Project in 1986).
45
See Douglas NeJaime, The Legal Mobilization Dilemma, 61 EMORY L.J. 663,
694-95(2012).
36
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normative, rather than strategic, position of marriage on the LGBT agenda. The
seminal 1989 exchange between Lambda Legal’s Tom Stoddard and Paula
Ettelbrick framed the issue. 46 Stoddard argued that the movement should pursue
marriage as a route to true equality. 47 Ettelbrick rejected marriage as a goal,
arguing that the turn to marriage would focus the movement on assimilationist
objectives, hitch the cause to an institution steeped in gender hierarchy, and
marginalize vulnerable LGBT families. 48 Instead of pursuing marriage,
Ettelbrick urged advocates to continue down the path of domestic partnership,
which had gained considerable traction by the late 1980s, as an alternative to
marriage. 49
The intra-movement debate over marriage’s normative significance
continued even as same-sex couples challenged Hawaii’s marriage law in the
early 1990s, explicitly against the advice of movement lawyers. 50 Lawyers from
Lambda Legal and the ACLU had urged the plaintiffs to resist litigation. Only
when the case moved up the appellate chain did Lambda Legal assert a formal
role by filing an amicus brief. 51
The Hawaii Supreme Court’s surprising 1993 decision in Baehr is
considered the opening shot in the modern battle for same-sex marriage. Finding
that the marriage law constituted a sex-based classification, the court remanded
the case with instructions to the trial court to subject the law to the most rigorous
form of state constitutional review. 52 The ruling transformed marriage as a
movement goal from unthinkable to realistic, 53 thereby increasing LGBT
engagement with marriage. In fact, Lambda Legal established its Marriage
Project in 1994. 54
The decision also activated a countermobilization that consumed significant
movement energy and resources. 55 In 1996, Congress passed DOMA, the law
currently at issue in Windsor. 56 The following year, the Hawaii legislature voted
46
Arthur S. Leonard, Going for the Brass Ring: The Case for Same-Sex Marriage,
82 CORNELL L. REV. 572 (1997).
47
See Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry,
OUT/LOOK, Fall 1989, at 9.
48
See Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation?,
OUT/LOOK, Fall 1989, at 14.
49
See id.
50
See Cummings & NeJaime, supra note 19, at 1250.
51
See MICHAEL J. KLARMAN, FROM THE CLOSET TO THE ALTAR 55 (2012).
52
852 P.2d 44. The couples had sought marriage licenses in December 1990 and
filed suit in May 1991. The trial court ruled in the state’s favor in October 1991. See
Michael Sant’Ambrogio & Sylvia A. Law, Baehr v. Lewin and the Long Road to
Marriage Equality, 33 U. HAW. L. REV. 705, 705-710 (2011).
53
Nancy D. Polikoff, Marriage as Choice? Since When?, 21 GAY COMM’Y NEWS
26 (1996) (“the increased prominence of the right to marry as a goal of our movement is
attributable entirely to the 1993 Hawaii Supreme Court decision”).
54
See KLARMAN, supra note 51, at 176.
55
See Schacter, supra note 24, at 1184-85.
56
Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 28 U.S.C. § 1738C
(2006) and 1 U.S.C. § 7).
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12
to allow a constitutional amendment, authorizing the legislature to limit marriage
to different-sex couples, to appear on the November 1998 ballot. At the same
time, lawmakers enacted a “reciprocal beneficiary” regime extending limited
rights and benefits to same-sex couples. 57 Hawaii voters ultimately passed the
constitutional amendment. 58 While the trial court on remand had found the
marriage law unconstitutional, 59 the state supreme court vacated that ruling in
light of the amendment. 60
In the leading accounts of the LGBT movement’s path to marriage, the postBaehr landscape crystallized the distinction between the pro-marriage and antimarriage paths open to the movement. As Carlos Ball, a scholarly voice
supportive of the marriage equality movement, explains:
[B]y the mid-1990s, the gay rights movement reached a
paradigmatic ‘fork in the road’ moment. On one side of the fork
was the possibility of expanding the institution of marriage by
including same-sex couples within its ambit. On the other side
was the possibility of reducing the importance of marriage by
seeking alternative forms of legal recognition for a wide variety
of familial arrangements, including those of LGBT people. 61
Similarly, in contemplating the paths open to the movement, Jane Schacter,
another generally sympathetic scholar, argues that given the domestic
partnership ordinances passed “before Baehr was ever decided,”
political forces might have chosen to set their sights on some
version of domestic partnership, expand it to the state and/or
federal level, and put its energies into deciding who should be
protected (same-sex couples only or opposite sex [sic] couples
as well?
Romantically-attached couples only or other
relationships in need of legal protection?). 62
“This course,” Schacter explains, “might have been charted before or after
Baehr.” 63
After Baehr, marriage gained traction, and activists who sought to organize
against marriage pressed their case in an increasingly inhospitable
environment. 64 At the time, Polikoff worried that the Hawaii marriage fight was
57
See HAW. REV. STAT. ANN. § 572C (LexisNexis 2005).
HAW. CONST. art. I., § 23.
59
Baehr v. Miike, CIV. No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3,
1996).
60
Baehr v. Miike, 994 P.2d 566 (Haw. 1999).
61
Carlos A. Ball, Symposium: Updating the LGBT Intracommunity Debate over
Same-Sex Marriage: Introduction, 61 RUTGERS L. REV. 493, 493 (2009).
62
Schacter, supra note 6, at 395.
63
Id.
64
In suggesting that the “debate about same-sex marriage might have unfolded
differently had the marriage skeptics within the LGBT community prevailed and
persuaded the movement to pursue a different path,” Schacter, supra note 6, at 383,
Schacter thoughtfully recognizes the obstacles to alternative routes.
58
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stifling the case against marriage. Seeking to articulate common ground and
resist the turn toward marriage, she argued that “[o]ne thing our community can
stand for is a principle that expands the definition of family and does not place a
monogamous relationship with one partner at the pinnacle of all human
relationships.” 65 She hoped that Baehr would “not wipe out the arguments for
working towards different goals and towards a different vision of lesbian and gay
liberation” 66 – that it would not, in other words, halt advocacy working against
marriage.
By the late-1990s, the organized movement began to affirmatively push for
marriage and moved forward with carefully orchestrated litigation. Gay &
Lesbian Advocates & Defenders (GLAD) participated in a marriage challenge in
Vermont, which yielded a civil union regime providing the state-law rights and
benefits of marriage to same-sex couples. 67 In neighboring Massachusetts in
2003, GLAD lawyers secured full marriage rights under state law. 68 The
movement for marriage equality was well underway, and the following decade
would witness a series of battles, both in and out of court, over same-sex
couples’ right to marry, 69 culminating in the Supreme Court’s take-up of the
issue in Windsor and Perry.
Ultimately, the narrative constructed in the conventional account suggests
that, consistent with the radical LGBT politics emerging in Stonewall’s wake,
advocates in the 1980s and early 1990s worked not only outside marriage but
against marriage. The growing acceptance of domestic partnership during that
time represented significant progress. Movement leaders themselves were
vigorously debating the role of marriage when, in 1993, events in Hawaii
catapulted marriage to the top of the agenda. Rather than continue to make the
case against marriage, advocates pivoted toward marriage. Domestic
partnership, once a key component of the case against marriage, became a
conservative stepping stone to marriage.
This conventional account, which largely has gone unquestioned, structures
the scholarly debate over marriage and its role in LGBT rights. But as I argue in
the next Part, this account is incomplete. It oversimplifies the contested nature
of marriage in earlier organizing and obscures the complicated interaction
between domestic partnership and marriage.
To be clear, I am not arguing that the conventional account is simply wrong.
Rather, I am locating key moments that it either neglects or oversimplifies. The
65
See David W. Dunlap, Some Gay Rights Advocates Question Effort to Defend
Same-Sex Marriage, N.Y. TIMES, June 7, 1996, at A12.
66
Id. See also Cathy Cohen, The Price of Inclusion in the Marriage Club, 21 GAY
COMM’Y NEWS 27 (1996); Lisa Duggan, The Marriage Juggernaut, 21 GAY COMM’Y
NEWS 5 (1996).
67
Baker v. State, 744 A.2d 964 (Vt. 1999); VT. STAT. ANN. tit. 15, § 23 (1999).
68
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003). In a separate
opinion, the court clarified that only full marriage, rather than civil unions, would remedy
the constitutional violation. See In re Opinion of the Justices to the Senate, 802 N.E.2d
565 (Mass. 2004).
69
See Schacter, supra note 55, at 1187-93.
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14
conventional account makes many accurate claims about the LGBT movement’s
trajectory, but it also leaves out important elements and generalizes from the
radical sexual politics that characterized only one part of the movement. It
identifies a key element of LGBT activism and links it to legal organizing before
Baehr. In doing so, the conventional account obscures the prominence of the
more nuanced and complicated positions that many advocates took toward
marriage, both for normative and strategic reasons. Consequently, it situates
post-Baehr marriage advocacy as a new phenomenon that defied, rather than
sprung from, earlier work. Ultimately, the conventional account both
overestimates advocates’ ability to work outside marriage and overstates the
significance of Baehr. The post-Baehr marriage claims at stake in Windsor and
Perry grew out of, rather than contradicted, pre-Baehr claims to nonmarital
recognition.
II. THE CALIFORNIA CASE STUDY:
NONMARITAL RECOGNITION, MARRIAGE, AND SAME-SEX COUPLES
The case study that follows looks closely at advocacy on behalf of lesbian
and gay families in the 1980s and 1990s in California. It traces advocacy across
a range of institutional domains, occurring at multiple levels of policymaking,
and influenced by a number of relevant actors, to understand the role of marriage
in LGBT organizing. It begins with local domestic partnership efforts in the
early 1980s – well before marriage occupied an official position on the LGBT
agenda – and ends with the achievement of domestic partnership on the state
level in 1999 – after Baehr launched marriage to national prominence.
The case study demonstrates that LGBT advocates themselves inhabited a
more complicated relationship to marriage than commonly assumed. Marriage
shaped their advocacy in ways that the conventional account obscures, and their
advocacy shaped marital norms in ways that we continue to witness today.
Claims to recognition and support contextualized the lesbian and gay experience
within a legal regime that, on one hand, privileged marriage and, on the other
hand, excluded same-sex couples from that privileged status. Accordingly,
LGBT claims exposed the unique interaction between marital status and sexual
orientation. Advocates themselves sought to make marriage matter less for
access to rights and benefits at the same time that they valued lesbian and gay
inclusion in marriage. They also responded to their constituents, who often
experienced relationships with reference to marriage as the paradigm and
demanded sexual-orientation equality. 70
70
Eskridge argues that Polikoff’s “critique of same-sex marriage . . . romanticizes
the movement, . . . which is not nearly so radical as Polikoff and others envision it.”
William N. Eskridge, A History of Same-Sex Marriage, 79 VA. L. REV. 1419, 1489
(1993). Sociologists report that lesbians and gay men experience legal relationship
recognition – and particularly marriage – as social validation and a sign of equality. See
KATHLEEN E. HULL, SAME-SEX MARRIAGE 116 (2006); Kimberly D. Richman, By Any
Other Name: The Social and Legal Stakes of Same-Sex Marriage, 45 U.S.F. L. REV. 357,
372 (2010).
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Non-movement actors contributed to the legal and political context that
shaped openings for and imposed constraints on LGBT advocates. Employers,
insurers, and local officials used marital norms to conceptualize and define the
terms of nonmarital support. State-level actors, including judges and legislators,
resorted to marriage to both uphold marital-status distinctions and justify
distinctions between different-sex and same-sex couples. And for socialconservative activists, marriage – including its meaning, its centrality, and the
inclusion of same-sex couples – formed the core of the debate from the outset
and influenced the terms on which LGBT claims were constructed.
Ultimately, the picture of marriage and LGBT advocacy that emerges is
more complicated than scholars have assumed. Advocates did not speak in one
voice, nor did they occupy a position that was clearly pro- or anti-marriage.
Instead, they carefully managed a legal and cultural framework that prioritized
marriage and yet excluded lesbians and gay men. Challenging marriage’s
primacy and yet arguing for recognition in terms that gained definition through
marital norms, advocates exposed, contested, and ultimately shaped marriage
and nonmarriage at the same time that they constructed same-sex couples as
marriage-like.
A. Setting the Stage
LGBT advocacy over the course of the late twentieth century did not
operate on a blank slate. Rather, significant external forces had dramatically
reshaped norms around family and sexuality. In the 1960s and 1970s, radical
critiques of marriage existed alongside efforts to revise and expand marriage. 71
And both social mobilizations and demographic changes impacted the line
between marriage and nonmarriage as well as the contours of marriage itself. As
LGBT advocates pushed reforms to support same-sex relationships, their work
was aided by important shifts both in and out of marriage. This section sketches
some of those shifts.
Civil rights advocates challenged bans on interracial marriage, exposing the
ways in which regulation of family and sexuality helped to constitute a racial
caste system. 72 Emphasizing the importance of partner choice and framing
marriage as a fundamental right, advocates prevailed in a landmark 1967
Supreme Court decision. 73 A few years earlier, the Supreme Court had struck
down, on equal protection grounds, criminal prohibitions on interracial
cohabitation. 74
Women’s rights activists in the 1960s and 1970s lodged influential critiques
of marriage and pushed a more equal conception of the relationship between
women and men both in and out of the family. 75 Using litigation asserting rights
71
See id.
See COONTZ, supra note 23, at 262.
73
Loving v. Virginia, 388 U.S. 1 (1967). The California Supreme Court first struck
does its interracial marriage ban in 1948. See Perez v. Sharp, 198 P.2d 17 (Cal. 1948).
74
McLaughlin v. Florida, 379 U.S. 184, 184 (1964).
75
COTT, supra note 23, at 204.
72
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under both the federal Constitution and Title VII of the 1964 Civil Rights Act,
women’s rights lawyers dismantled sex-based distinctions in the workplace and
the home.
Yet the battle over the ERA shows that emphasis on women’s roles in
reproduction and childrearing preserved important domains of legal sex
differentiation. 76 As Reva Siegel demonstrates, ERA opponents, most notably
Phillys Schlafly’s STOP ERA organization, argued that the ERA threatened the
family by seeking to upend the traditionally gendered roles filled by women and
men. 77 The proposed amendment, Schlafly argued, would harm women by
devaluing the important caregiver role that they fill. 78 Moreover, Schlafly used
the prospect of constitutionalized same-sex marriage and abortion to turn back
the ERA. 79
Pro- and anti-ERA activists absorbed each other’s arguments. As Serena
Mayeri documents, women’s rights advocates framed support for reproductive
rights as outside the concept of legal equality under the ERA. 80 And they
disclaimed any connection between the ERA and same-sex relationship
recognition. 81 Indeed, these advocates eventually urged ratification of the ERA
while arguing that the “ERA will NOT change or weaken family structure” and
“has nothing to do with sexual behavior or with relationships between people of
the same sex.” 82
While the prospect of same-sex marriage seemed especially remote, the idea
was not unthinkable. Just after Stonewall, in 1970, the Reverend Troy Perry
married same-sex couples in religious ceremonies in Los Angeles. 83 And
throughout that decade, before the movement’s robust public interest law
infrastructure existed, same-sex couples across the country sought marriage
licenses and brought legal challenges to marriage laws. 84 In 1972, Jack Baker
and Michael McConnell pushed their marriage lawsuit all the way to the U.S.
Supreme Court. 85 The high court of Minnesota had rejected their claim,
reasoning that “[t]he institution of marriage as a union of man and woman,
uniquely involving the procreation and rearing of children within a family, is as
76
See id. at 205.
See Siegel, supra note 18, at 1391-92.
78
See id. at 1391-92.
79
See id. at 1393.
80
See Serena Mayeri, Constitutional Choices: Legal Feminism and the Historical
Dynamics of Change, 92 CALIF. L. REV. 755, 792 (2004).
81
See Siegel, supra note 18, at 1394-1403.
82
National Commission on the Observance of International Women's Year, The
Spirit of Houston: The First National Women's Conference, An Official Report to the
President, The Congress and the People of the United States 51 (1978).
83
See WILLIAM N. ESKRIDGE & DARREN R. SPEDALE, GAY MARRIAGE 16 (2006).
84
See Cummings & NeJaime, supra note 19, at 1248. In 1993, a West Hollywood
couple unsuccessfully challenged California’s marriage law. Helen Kelleher, Gay Couple
Challenge State Laws on Marriage, L.A. TIMES, Apr. 21, 1993, at C3.
85
See Baker v. Nelson, 409 U.S. 810 (1972). For an insightful recounting, see
Marry Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1761-64 (2005).
77
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old as the book of Genesis.” 86 In a one-line order, the Supreme Court dismissed
their appeal “for want of a substantial federal question.” 87 In California, after a
1971 statutory change deleting the marriage law’s sex-specific language, couples
sought marriage licenses from county clerks, prompting the 1977 revision of the
marriage statute to clarify that “[m]arriage is a personal relation arising out of a
civil contract between a man and a woman.” 88 Even then, same-sex couples
continued to enter marriage as a cultural and religious matter. 89
As Siegel shows, even though the ERA failed, the jurisprudence of
constitutional equality came to embody significant sex-equality principles that
the amendment meant to advance. 90 With a receptive Court, women’s rights
advocates successfully removed most sex-based distinctions in marriage, at least
as a formal legal matter. 91 That is, even as the ERA failed, the Supreme Court
made significant contributions to sex equality in the family, resisting a model of
marriage rooted in sex-differentiated roles. 92 The resulting law of sex equality,
however, also included the limitations achieved by ERA opponents.
Constitutional equality principles had limited application in the areas of
reproduction and sexuality. 93 The liberalization of abortion restrictions in Roe v.
Wade rested on privacy grounds. 94 And sex equality in the 1970s clearly did not
include marriage for same-sex couples, as the Supreme Court’s dismissal of
Baker made clear. 95
Demographic and economic shifts prompted and supported the push toward
gender neutrality in legal rules governing marriage. Women had become more
likely to work outside the home, and, as family historian Stephanie Coontz
shows, “became more likely to define having a job as an important part of their
identity.” 96 Over the 1970s and 1980s, the majority of the increase in women’s
employment was attributable to married women. 97 The breadwinner-homemaker
model of marriage receded, and two-earner marriages became increasingly
86
See Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).
Baker, 409 U.S. at 810.
88
CAL. CIV. CODE § 4100 (West 1977).
89
Mary C. Dunlap, The Lesbian and Gay Marriage Debate: A Microcosm of Our
Hopes and Troubles in the Nineties, 1 LAW & SEXUALITY 63, 72 (1991).
90
See Siegel, supra note 18, at 1404-06.
91
See Nan Hunter, Introduction: The Future Impact of Same-Sex Marriage: More
Questions Than Answers, 100 GEO. L.J. 1855, 1864 (2012).
92
See, e.g., Orr v. Orr, 440 U.S. 268 (1979); Weinberger v. Wiesenfeld, 420 U.S.
636 (1975). On the relationship between the Equal Rights Amendment and equalprotection jurisprudence, see Siegel, Constitutional Culture, Social Movement Conflict
and Constitutional Change, supra note 18.
93
See id. at 1407.
94
See Roe v. Wade, 410 U.S. 113 (1973).
95
See id.; Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), dismissed for want
of a substantial federal question, 409 U.S. 810 (1972).
96
See COONTZ, supra note 23, at 259.
97
See id.
87
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common, 98 with women continuing to carry the burden of household and
caretaking responsibilities. 99
While feminist activists distanced reproduction and sexuality from gender
equality, they nonetheless sought to increase personal control over sex and
reproduction and detach sexuality from the traditional morality of marriage. 100
The increasingly privatized understanding of marriage pushed by women’s rights
activists aligned with a more general privatized conceptualization of intimate
relationships, which undergirded the legal argument for rights around sex and
reproduction. In its 1965 Griswold v. Connecticut ruling, the Supreme Court
struck down a state law prohibiting contraception for married couples 101 –
effectively bestowing on them a right to have nonprocreative sex. In its 1972
Eisenstadt v. Baird decision, the Court extended Griswold on equal protection
grounds, recognizing sexual privacy rights for unmarried individuals in ways that
began to displace marriage as a marker of state-sanctioned sexual morality. 102
Finally, the principles of sexual privacy announced in Griswold and Eisenstadt
justified the Court’s 1973 decision in Roe. 103
The Supreme Court’s liberalization of access to and use of contraceptives
followed the commercialization of the birth control pill in the 1960s. The
widespread availability of contraception reshaped not only the relationship
between sex and reproduction, but women’s position in both intimate and
economic spheres. 104 Women’s control over reproduction yielded greater control
over their work lives, and a growing number of married couples decided not to
have children, thereby “weaken[ing] the connection between marriage and
parenthood.” 105
Even as the constitutional principle of privacy protected women’s choices
regarding sex and reproduction, women’s rights advocates pierced the veil of
marital privacy to address domestic violence and rape. 106 In a key decision in
1984, the high court of New York struck down the state’s marital rape
exemption, relying on the type of equal protection rationale that prevailed in
Eisenstadt: Men in unmarried couples, who could be prosecuted for rape, and
men in married couples, who could not, were not being treated equally. 107 As
historian Nancy Cott explains, the defeat of marital rape exemptions reflected
98
See id. at 262.
See ARLIE HOCHSCHILD & ANN MACHUNG, THE SECOND SHIFT (1989).
100
See COTT, supra note 23, at 201.
101
381 U.S. 479 (1965).
102
405 U.S. 438 (1972). See also COTT, supra note 23, at 199.
103
Roe v. Wade, 410 U.S. 113 (1973). See also COTT, supra note 23, at 210.
104
See COONTZ, supra note 23, at 254; COTT, supra note 23, at 202.
105
COONTZ, supra note 23, at 255.
106
See COTT, supra note 23, at 210-11. See also Ruth Colker, Marriage Mimicry:
The Law of Domestic Violence, 47 WM. & MARY L. REV. 1841, 1851-53 (2006).
107
See People v. Liberta, 64 N.Y.2d 152, 163 (1984). Still, today many states
continue to treat marital rape differently than other forms of rape. See Jill Elaine Hasday,
Contest and Consent: A Legal History of Marital Rape, 88 CALIF. L. REV. 1373 (2000).
99
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the ascendant norm of “the wife’s self-possession” and the continued erosion of
distinctions between married and unmarried relationships. 108
As the line between marriage and nonmarriage blurred, exit from and
reentry into marriage also became easier and more common. While divorce rates
had risen substantially in the 1950s and 1960s, California initiated the no-fault
divorce revolution in 1969. 109 The no-fault regime that took hold across the
country in the 1970s further normalized divorce and advanced a view of
marriage rooted in romantic affiliation and personal fulfillment. 110 Women’s
rights advocates pushed post-dissolution rules toward gender neutrality,
particularly on the issues of support and child custody, and courts and lawmakers
increasingly began to see both husbands and wives as workers and caretakers. 111
Courts also began to enforce prenuptial agreements, which Cott links to the
ascendance of a privatized, personal, contractual model of marriage over a
public, state-imposed, status-based model. 112 Couples, in other words, were
given increasing leeway to construct marriage in personal and individualized
ways. 113 This rise of a contractual view of marriage met the increasing
recognition of unmarried couples’ rights – through contract-based doctrines – to
further weaken the distinction between marriage and nonmarriage 114 and
accommodate the growing number of unmarried, cohabiting different-sex
couples. 115
In a groundbreaking 1976 decision, the California Supreme Court, in
Marvin v. Marvin, held that upon dissolution of unmarried relationships, courts
could enforce cohabitation agreements, whether express or implied. 116 Even as
the court’s contractual approach resonated with an ascendant conception of
108
See COTT, supra note 23, at 211.
See COTT, supra note 23, at 205. Hartog shows the way in which before the
twentieth century separations allowed spouses to leave marriages and move onto other
marital relationships. Then, well before the onset of no-fault divorce, formal divorce
rates began to rise throughout the twentieth century. See HENDRIK HARTOG, MAN AND
WIFE IN AMERICA: A HISTORY 277 (2000).
110
See Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J.
MARRIAGE & FAM. 848, 852 (2004). See also Eskridge, supra note 22, at 1955 (“no-fault
divorce has changed the fundamental nature of marriage – not only undermining the
aspiration that marriage is ‘until death do us part’ but also recasting marriage as a choicebased relationship”).
111
See Orr, 440 U.S. 268. See also COTT, supra note 23, at 206.
112
See COTT, supra note 23, at 209. See also Sanford N. Katz, Marriage as
Partnership, 73 NOTRE DAME L. REV. 1251, 1257 (1998).
113
See COTT, supra note 23, at 208. This resonates with Eskridge’s argument that
“the normative foundation of family law has changed . . . – away from natural law norms
and toward utilitarian ones – and that the new normative foundation supports regulation
through guided choice rather than the mandatory rules that dominated the prior regime.”
Eskridge, supra note 22, at 1886.
114
See HARTOG, supra note 109, at 310.
115
On the rise and regulation of cohabiting different-sex relationships, see CYNTHIA
GRANT BOWMAN, UNMARRIED COUPLES, LAW, AND PUBLIC POLICY (2010).
116
557 P.2d 106 (Cal. 1976).
109
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marriage, 117 the contractual lens limited the extension of rights to unmarried
couples and maintained their legal and moral distance from their married
counterparts. 118 Indeed, the contract theory restricted unmarried couples’ ability
to assert rights vis-à-vis third parties. 119 In its 1987 Elden v. Sheldon decision,
the California Supreme Court held that a man in a cohabiting, unmarried
relationship who witnessed the death of his female partner could not recover for
loss of consortium and negligent infliction of emotional distress. 120 Allowing
recovery, the court reasoned, would “inhibit” “the state’s interest in promoting
marriage.” 121
As marriage and birth rates both declined, the number of births outside
marriage increased dramatically. 122 A series of Supreme Court decisions in the
1960s and 1970s vindicated the rights of nonmarital children and parents, further
weakening the legal significance of marriage. 123 In response, parental rights
became less marriage-centered. State legislatures revamped their family codes to
remove distinctions between marital and nonmarital children. When in 1975 the
California Senate publicized the bill that would become the state’s Uniform
Parentage Act, its press release announced that the Act “would revise or repeal
117
The Marvin court’s space for theories of implied contract, however, can be read
as a quasi-status concept. See Eskridge, supra note 22, at 1930.
118
While LGBT advocates hoped that same-sex couples could capitalize on the
Marvin doctrine such that courts would divide assets and property in ways that
approximated determinations at death or divorce for married couples. See Big Ruling on
Unmarried Couples, S.F. Chron., Dec. 28, 1976, at A1. But that hope was short-lived.
For same-sex couples, especially in situations that mirrored the gendered division of labor
in marraige, the California courts struggled to separate out the sexual nature of the
relationship from the types of agreements that many (married) couples form based on
their mutual interdependence and economic specialization. See Jones v. Daly, 122 Cal.
App. 3d 500 (1981). Yet when the dependent cohabitant performed less domestic
services – and therefore mapped less easily onto the gendered contours of marriage – the
courts allowed recovery. Whorton v. Dillingham, 202 Cal. App. 3d 447, 454 (1988).
This seems to run counter to the dynamic in the heterosexual context, where, as Charlotte
Goldberg explains, “couples whose relationship is most like a traditional marriage are
likeliest to exhibit an implied agreement to share property.” Charlotte K. Goldberg, The
Schemes of Adventuresses: The Abolition and Revival of Common-Law Marriage, 13
WM. & MARY J. WOMEN & L. 483, 488 (2007).
119
Cf. Mary Anne Case, Couples and Coupling in the Public Sphere: A Comment
on the Legal History of Litigating for Lesbian and Gay Rights, 79 VA. L. REV. 1643,
1664-65 (analyzing Braschi v. Stahl Assocs. Co., 543 N.E.2d 49 (N.Y. 1989)).
120
758 P.2d 582 (Cal. 1988).
121
Id. at 586.
122
See COTT, supra note 23, at 202-03.
123
See Levy v. Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee &
Liability Ins. Co., 391 U.S. 73 (1968); Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin
v. Walcott, 434 U.S. 246 (1978). See also COONTZ, supra note 23, at 257. For a critical
perspective on the relationship between illegitimacy jurisprudence and marital norms, see
Murray, supra note 15. On the use of illegitimacy in the LGBT context, see Nancy D.
Polikoff, The New “Illegitimacy”: Winning Backward in the Protection of the Children
of Lesbian Couples, 20 AM. U. J. GENDER SOC. POL’Y & L. 721 (2012).
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various laws which now provide for labeling children as legitimate or
illegitimate and defining their legal rights and those of their parents
accordingly.” 124 The new law would instead “base[] parent and child rights on
the existence of a parent and child relationship rather than on the marital status
of the parents.” 125
Parental rights also began to hinge less on biology. Reproductive
technology, especially the availability of in vitro fertilization in the early 1980s,
emerged as a force that would detach parenthood from procreative sex and
complicate determinations of legal parentage. 126 Without legislation addressing
these developments, courts struggled to develop rules that would govern
determinations of parentage for families formed through reproductive
technology. While the New Jersey Supreme Court in 1986 famously refused to
enforce surrogacy agreements as against public policy, 127 California courts
upheld such agreements and made intent, rather than biology, central to
determinations of parentage. 128 And while legislative changes focused on
reproductive technology within marital families, a growing number of women
using such technology were unmarried. 129 With multiple individuals claiming
biological connections to particular children, biology itself became less central
to parental determinations. At the same time, courts affirmed parental rights for
nonbiological parents outside the context of reproductive technology, concerned
more with social and functional parent-child relationships. 130
As this brief exploration makes clear, the broad shifts occurring in and out
of marriage emerged primarily from changes in heterosexual lives. LGBT
advocates would seize on these demographic changes and the legal and political
mobilizations with which they are associated to gain support for lesbians and gay
men. That is, laws regulating family and sexuality grew increasingly conducive
to lesbian and gay life because of changing norms, demographics, and legal
reforms relating to different-sex relationships and families both inside and
outside marriage. Yet, as we will see, LGBT advocates did not simply latch onto
changes wrought by other movements. Instead, they elaborated and advanced
those changes.
124
See Johnson v. Calvert, 851 P.2d 776, 779 (Cal. 1993).
See id.
126
See Courtney G. Joslin, The Evolution of the American Family, 36 HUMAN
RIGHTS 1, 4 (2009).
127
See In re Baby M. 537 A.2d 1227 (N.J. 1986).
128
See Johnson, 851 P.2d 776; In re Marriage of Buzzanca, 72 Cal.Rptr.2d 280
(Cal. Ct. App. 1998).
129
See Courtney G. Joslin, Protecting Children(?): Marriage, Gender, and Assisted
Reproductive Technology, 83 S. CAL. L. REV. 1177, 1178-79 (2010).
130
See In re Nicholas H., 46 P.3d 932 (Cal. 2002) (holding that presumed father’s
admission that he was not biological father did not necessarily rebut presumption of
fatherhood).
125
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B.The Origins of Domestic Partnership
In its earliest iteration, domestic partnership harnessed sexual-orientation
nondiscrimination principles to offer a pragmatic solution to the broader problem
posed by same-sex couples’ lack of access to marriage. 131 That is, rather than
seeking to unsettle marriage, the first activists proposing domestic partnership
recognition were advancing a practical and realistic proposal to obtain benefits.
From its inception, domestic partnership’s terms were suggested by comparison
to marriage.
In 1979, in response to Berkeley’s sexual-orientation nondiscrimination
policy passed the previous year, 132 city employee Tom Brougham urged the city
to provide healthcare coverage to his same-sex partner. 133 Brougham argued it
was unfair to use marriage as the sole eligibility criterion for benefits and
suggested that the city create a “domestic partnership” designation to remedy the
inequity. 134 He proposed using an affidavit ensuring the employee’s relationship
approximated marriage. 135 In 1984, Berkeley adopted a domestic partnership
policy applicable to city employees, and, after some initial hurdles, city
employees’ domestic partners, both same-sex and different-sex, became eligible
for dental and health benefits. 136 Under Berkeley’s terms, domestic partners
were required to be “responsible for [each other’s] common welfare,” “reside
together,” and “share the common necessities of life.” 137
The Berkeley proposal was picked up by openly gay San Francisco
Supervisor Harry Britt, who proposed his city’s first domestic partnership
ordinance, applicable to both same-sex and different-sex couples. 138 The
ordinance would have ordered the city to use the term “domestic partnership”
interchangeably with “marriage” in determining benefits eligibility. 139 But after
131
See Nan D. Hunter, Marriage, Law, and Gender: A Feminist Inquiry, 1 LAW &
SEXUALITY 9, 23 (1991).
132
Berkeley Council Approves Strong Gay Rights Law, L.A. TIMES, Oct. 12, 1978,
at B28.
133
See Leland Traiman, A Brief History of Domestic Partnerships, 15 GAY &
LESBIAN REV. 23 (2008). Traiman, a gay activist who sat on Berkeley’s Human Relations
and Welfare Commission, chaired the Domestic Partner Task Force that produced the
policy.
134
See id.
135
See id.
136
City of Berkeley, Policy Establishing Domestic Partnership Registration (1984).
Berkeley offered registration to the public in 1991. See City of Berkeley, Domestic
Partnership Information, at
http://www.ci.berkeley.ca/us/Clerk/Home/Domestic_Partnerships.aspx (last visited July
17, 2012).
137
City of Berkeley, Affidavit of Domestic Partnership (1984) (on file with author).
138
See Traiman, supra note 133.
139
See Wallace Turner, Couple Law Asked for San Francisco, N.Y. TIMES, Nov. 28,
1982, at A1.
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passage by the Board of Supervisors in 1982, Mayor Diane Feinstein vetoed the
ordinance. 140
Both supporters and opponents understood domestic partnership in terms of
marriage equivalence. San Francisco Archbishop John Quinn wrote to Feinstein,
claiming that “to reduce the sacred covenant of marriage and family by inference
or analogy to a domestic partnership is offensive to reasonable persons and
injurious to our legal, cultural, moral and societal heritage.” 141 Feinstein
objected not on religious grounds but instead worried that the provision
requiring domestic partners to be treated like spouses was “inconclusive and
unclear” and potentially “subject to various interpretations.” 142 For his part,
Britt claimed that provision constituted “the heart of the legislation.” 143 The
battle lines over the definition of domestic partners were drawn through
marriage. A domestic partner was not any family member; she was a spousal
equivalent. Nonetheless, it would take several years for a domestic partnership
ordinance to succeed in San Francisco.
In Southern California, Los Angeles lawmakers also considered domestic
partner benefits. Councilman Zev Yaroslavsky pushed the issue in 1985, and
concerns over cost soon shaped the internal debate among city officials. 144 The
City Administrative Officer estimated that “[f]or health insurance alone, the
additional costs would be between $1.7 – $3.4 million.” 145 Insurance carriers’
reluctance to provide coverage further clouded the debate with uncertainty. An
earlier inquiry by the City Attorney in 1980 revealed that some insurers would
refuse to provide domestic partner coverage while others would only do so “if an
adequate definition of the relationship could be developed.” 146 Neither the 1980
nor 1985 discussions produced a domestic partnership policy, but they laid the
groundwork for the Los Angeles Task Force on Family Diversity, discussed
below, which formed in 1986 as an attempt to advance such a policy.
Meanwhile, in 1985, the newly incorporated city of West Hollywood passed
a domestic partnership ordinance, allowing both same-sex and different-sex
couples to register with the city. 147 The status was limited to couples who
“share[d] the common necessities of life” and were “responsible for each other’s
welfare.” 148 At this early stage, advocates were constructing domestic
partnership in a way that mapped onto a model of marriage characterized by
exclusive adult coupling, mutual support, and economic interdependence.
140
David Morris, SF Mayor Vetoes Domestic Partners Bill, 10 GAY COMM’Y NEWS
1 (1982).
141
Id.
142
Id.
143
Id.
144
See Memorandum from Keith Comrie, City Administrative Officer, to Zev
Yaroslavsky, Councilman, Fifth District, Mar. 4, 1985 (on file with author).
145
Id. at 1.
146
Id.
147
West Hollywood Mun. Code §§ 4220-28 (1985).
148
City of West Hollywood, Statement of Domestic Partnership (1985) (on file with
author).
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While open to same-sex and different-sex couples, the domestic partnership
registry attempted to provide legal and social validation for the relationships
formed by lesbians and gay men. As Mayor Valerie Terrigno explained,
“Allowing domestic partners to register is a way of saying that the relationship is
equal to marriage in the eyes of the city.” 149 In this sense, the law offered more
symbolic than substantive significance. Only in 1989 did the city of West
Hollywood extend healthcare coverage to the (same-sex and different-sex)
unmarried partners of city employees. 150 After twenty unsuccessful attempts to
convince private insurers to include coverage for domestic partners, the city selfinsured. 151
C. The Origins of Domestic Partnership Litigation
At the same time that advocates advanced rights for unmarried couples at
the local level, the California courts considered the extension of rights at the
state level. In litigation challenging the denial of rights to unmarried
relationships, marriage furnished the norms that defined the claims. In fact,
LGBT rights lawyers and their clients embraced the normative significance of
marriage. Yet marriage’s status ultimately provided the basis for denial of those
claims.
Soon after city employees made claims on their employers, thus initiating
the domestic partnership movement, lesbian and gay state employees also
demanded benefits from their employers. But while local municipalities had no
control over access to marriage, claims on state-level policy existed in the
context of state power over marriage. In asking the state to provide benefits to
same-sex partners, lesbians and gay men challenged sexual-orientation-based
classifications built into regimes organized around marriage. Accordingly,
demands for state-level benefits highlighted the inextricable relationship
between discrimination stemming from marriage’s privileged status and sexualorientation discrimination in marriage laws themselves.
In 1982, the California Department of Personnel Administration refused to
provide dental benefits for the same-sex partner of Boyce Hinman, a state
employee. In response, Hinman sued and was represented by Roberta
Achtenberg of the Lesbian Rights Project (predecessor to the National Center for
Lesbian Rights). 152 Marriage framed Hinman’s claim, as he argued that his
marriage-like relationship with his partner, Larry Beatty, should qualify them for
149
Phen Braunt, Registering of W. Hollywood ‘Relationships’ Proposed, L.A.
TIMES, Jan. 31, 1985, at C14.
150
Ron Russell, W. Hollywood Will Insure Partners of Single Employees, L.A.
TIMES, Feb. 22, 1989, at C3.
151
Letter from Kevin M. Fridlington, Human Resources Officer, City of West
Hollywood, to Thomas F. Coleman, Spectrum Institute, Nov. 12, 1992, in Report of the
Anti-Discrimination Task Force of the California Insurance Commissioner, A Call to End
Unfair Insurance Discrimination Against Unmarried Consumers 57 (July 1993) (on file
with author).
152
Hinman v. Dep’t of Pers. Admin., 167 Cal. Rptr. 410 (Cal. Ct. App. 1985).
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benefits. 153 Indeed, Hinman and Beatty represented that they “would marry if
they were not prohibited from doing so by state law.” 154
Achtenberg stressed Hinman and Beatty’s commonality with married
couples:
They share a home, combine their incomes and assets, and
jointly own real estate and personal property. They enjoy meals
together, attend church and social occasions together, and enjoy
vacations and recreation together. They have friends together,
have a feeling of belonging together, and are looked upon by
themselves and by friends and family as having a responsibility
for each other in case of accident or illness. They are the
beneficiaries of each other’s wills and life insurance policies,
and have made mutual commitments of emotional support and
legally enforceable commitments of economic support. 155
Consequently, Achtenberg claimed that “[t]he only difference between Petitioner
Hinman and his fellow state employees with spouses is that Petitioner Hinman is
a homosexual,” and therefore he and his partner “are forbidden by California law
to marry.” 156 Achtenberg, then, did not reject marriage; instead, she argued that
even if same-sex couples were excluded from marriage as a legal matter, they
were sufficiently like married couples such that they should be granted some of
the same rights and benefits.
At the same time, Achtenberg constructed different-sex nonmarital
relationships outside the norms of commitment, mutual support, and financial
interdependence that characterized the relationships of both married couples and
Hinman and Boyce. Using marriage’s sexual-orientation-based dividing line, 157
Achtenberg drew stark distinctions between same-sex and different-sex
unmarried couples. 158 She claimed that “many unmarried heterosexual couples
do not take on the total economic integration and permanent commitment
manifested in Appellant Hinman’s relationship and the relationship of married
couples.” 159
This suggests that Achtenberg and her clients were not seeking to unsettle
marriage; rather, their primary goal was to address the discriminatory treatment
of same-sex couples who functioned like married couples. Of course, to make
153
See Brief for Appellants 18, Hinman v. Dep’t of Pers. Admin., No. 3-23749, 167
Cal. Rptr. 410 (Cal. Ct. App. 1985) (“Because the use of marriage criterion to determine
eligibility for benefits is so pervasive, and because homosexuals are forbidden to marry,
homosexuals in long-term, stable, serious relationships like marriage suffer severe
disabilities.”).
154
Id. at 1.
155
Id. at 9.
156
Id.
157
See Brief for Appellants, supra note 153, at 7.
158
See Reply Brief for Appellants 3-4, Hinman v. Dep’t of Pers. Admin., No. 323749, 167 Cal. Rptr. 410 (Cal. Ct. App. 1985).
159
See Brief for Appellants, supra note 153, at 10.
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that claim, Achtenberg articulated a particular model of marriage that fit samesex couples’ lives. At this early stage, we begin to see both the construction of
same-sex couples as marriage-like and the articulation of a model of marriage
capable of including lesbian and gay families.
Therefore, rather than contest marital-status distinctions generally,
Achtenberg argued that the benefits policy discriminates “against homosexuals
by use of the status ‘spouse,’” 160 and at the same time conceded that
discrimination against unmarried different-sex couples was permissive. The
focus on sexual orientation, rather than marital status, reflected constraints
imposed by the relevant doctrinal landscape. In its 1983 decision in Norman v.
Unemployment Insurance Appeals Board, the California Supreme Court had
limited claims in employment alleging marital-status discrimination. 161 Relying
on “the state’s legitimate interest in promoting marriage,” the court upheld the
denial of unemployment benefits to a woman who had left her job to accompany
her fiancé to another state. 162 In doing so, the court erected a substantial barrier
to the claim that tying benefits to marriage was legally impermissible and
constructed a doctrinal framework that forced LGBT rights lawyers to
distinguish their claims from those based more generally on marital status. Of
course, the state attempted to leverage Norman so as to group lesbian and gay
employees with the larger (unprotected) class of unmarried employees. 163 For
LGBT advocates, then, their best prospect relied on showing that, because of
access to marriage, same-sex and different-sex couples were not similarly
situated. Achtenberg, therefore, argued that while “[t]he state’s legitimate
interest in promoting marriage may warrant the denial of family dental benefits
to heterosexual state employees who choose, for whatever reasons, not to marry
their partners, . . . [i]t does not warrant denial of such benefits to Appellant
Hinman who would marry his partner if legally allowed to do so . . . .” 164 The
claim was not that marriage should not be the relevant dividing line; rather,
marriage may be the dividing line, but same-sex couples were more like married
couples than unmarried (different-sex) couples and thus should be included on
the side of marriage.
Supporting Achtenberg’s sexual orientation-based focus on marriage access
over marriage choice, the ACLU’s amicus brief, submitted by Matt Coles, a
private civil rights lawyer who would later head the ACLU’s LGBT Project, 165
160
Id. at 45. See also id. at 3.
34 Cal. 3d 1 (1983).
162
Id. at 9.
163
See Respondents’ Brief 6, 27-28, 42, Hinman v. Dep’t of Pers. Admin., No. 323749, 167 Cal. Rptr. 410 (Cal. Ct. App. 1985).
164
See Brief for Appellants, supra note 153, at 34. At the same time that governing
case law and executive orders favored sexual-orientation claims, constitutional norms
created greater opportunities for arguments focused on sexual orientation rather than
marital status. Achtenberg attempted to map the factors that governed suspect-class status
onto lesbians and gay men. See id. at 13-28.
165
See Cummings & NeJaime, supra note 19, at 1254. Coles helped draft the
Berkeley domestic partnership ordinance. See id.
161
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argued that since “California prohibits marriage between individuals of the same
gender,” the regulation at issue divides state employees into three groups:
(1) those who are married and qualify for the family partner benefit if they
wish it;
(2) those who are not married, but are legally able to marry and qualify for
the benefit if they wish it; and
(3) those who are not married, and are legally unable to marry and qualify
for the benefit. 166
Since “[a]ll members of the first two groups are heterosexual, and . . . [a]ll
members of the third group are homosexual, . . . the regulation creates a ‘pure’
distinction between heterosexual state employees and gay state employees.” 167
In the eyes of the ACLU, the relevant distinction was not “between those who do
and those who do not receive the benefits,” but rather “between those who may,
if they wish, receive the benefits, and those who may not.” 168
In response, the court relied on marriage’s sexual-orientation-based
exclusion to distinguish lesbian and gay employees from other unmarried state
employees. The coverage, the court explained, “necessarily excludes same-sex
partners . . . [b]ecause they may not marry . . . .” 169 Accordingly, the court
reasoned, the government’s “classification of family members, particularly
spouses, is based not solely on marital status, but also on sexual orientation.” 170
Yet, in the next breath, the court rejected the plaintiffs’ claim by grouping
lesbians and gay men with all other unmarried individuals:
Homosexuals are simply part of the larger class of unmarried
persons, to which also belong the employees’ filial relations and
parents, for example. The terms have the same effect on the
entire class of unmarried persons. Rather than discriminating on
the basis of sexual orientation, therefore, the dental plans
distinguish eligibility on the basis of marriage. 171
Consequently, the court found that “plaintiffs are not similarly situated to
heterosexual state employees with spouses.” 172 Even as the marriage-like nature
of Hinman and Beatty’s relationship formed the basis of their claim, their
exclusion from marriage rendered them more like siblings than spouses, and
therefore ineligible for benefits.
166
Brief of American Civil Liberties Union of Northern California as Amicus Curiae
in Support of Appellants 3, Hinman v. Dep’t of Pers. Admin., No. 3-23749, 167 Cal.
Rptr. 410 (Cal. Ct. App. 1985).
167
Id. at 3-4.
168
Id. at 4. As Eskridge argues, “The structure of American public law played a role
in a process by which marriage became the situs for cutting-edge gaylegal reform.”
WILLIAM N. ESKRIDGE, EQUALITY PRACTICE 5 (2002).
169
167 Cal. Rptr. at 411.
170
Id. at 411-12.
171
Id. at 416.
172
Id.
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Ultimately, the court concluded that the plaintiffs’ complaint was with the
marriage statute, which they had not formally challenged. 173 Marriage
constituted the dividing line that kept benefits from same-sex couples, yet, in
litigation that did not directly contest the exclusion of same-sex couples from
marriage, courts could justify the denial of benefits by resorting to the marriage
law. 174 As the concurrence noted, marriage both distinguished the plaintiffs’
claims from others in the class of unmarried individuals and “compel[led] the
result.” 175
D. Task Force Work – Making the Case For and Against Marriage
During the late 1980s, LGBT advocates focused their attention on both
municipal policy and state-level legislative reform. A series of task forces, with
leadership by LGBT rights lawyers, contextualized the needs of lesbians and gay
men within broader attempts to accommodate the changing family. In significant
ways, task force leaders attempted to resist marriage as a relevant reference point
for the distribution of rights and benefits. Yet, at the same time, the results of
the task force efforts show that marriage both differentiated same-sex couples
from their different-sex unmarried counterparts and constructed the terms of
nonmarital recognition. Moreover, the now-familiar frame of domestic
partnership as a stop-gap measure specifically for same-sex couples emerged at
this early point – even though domestic partnership included different-sex
couples and provide a much more limited bundle of rights.
1. Los Angeles Task Force on Family Diversity
While domestic partnership efforts fizzled earlier in the decade, by the late
1980s, Los Angeles had become a leader on reform aimed at accommodating a
range of families. In 1986, Councilman Michael Woo convened the Los Angeles
Task Force on Family Diversity. Thomas Coleman, a gay lawyer who advocated
for the rights of unmarried individuals, had urged Woo to form the Task Force as
part of an effort to push the city to provide employee benefits to domestic
partners. 176 Coleman conceptualized the issue of LGBT family recognition as
part of a broader framework of family-based reform.
The Task Force, which included Coleman as a special consultant, issued its
final report in 1988. 177 The report reflected a functional family-law vision,
adopting a definition of family that focused on “mutual interdependency” and
included “unmarried persons not related by blood, but who are living together
and who have some obligation, either legal or moral, for the care and welfare of
173
Id. at 415.
Id. at 419-20.
175
Id. at 420 (Blease, J., concurring).
176
See THOMAS F. COLEMAN, THE DOMINO EFFECT 77-78 (2009).
177
Task Force on Family Diversity, City of Los Angeles, Final Report,
“Strengthening Families: A Model for Community Action” (May 1988) (on file with
author).
174
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one another.” 178 Indeed, it noted that a majority of Los Angeles adults were
unmarried. 179
When the Task Force turned more comprehensively to unmarried,
cohabiting couples – what it termed “domestic partnership families” 180 – it both
grouped same-sex couples in the category of other unmarried couples and
distinguished such couples by their lack of access to marriage:
There are a variety of reasons why couples decide to live
together outside of marriage. For same-sex couples, there are
legal obstacles to marriage. For young opposite-sex couples,
‘trial marriages’ may be prompted by fear of making a wrong
decision, a fear perhaps justified by high divorce rates. Long
periods, sometimes years, of cohabitation may provide an
answer for divorcees trying to avoid renewing old mistakes. For
elderly widows or widowers, unmarried cohabitation may be a
matter of economic survival, since remarriage can trigger the
loss of marital survivor benefits. Economic disincentives or socalled ‘marriage penalties’ prevent many disabled couples from
marrying. 181
While the Task Force situated many different-sex couples’ unmarried
cohabitation as either a precursor to marriage or a solution to failed marriage,
same-sex couples, along with some older and disabled couples, experienced their
unmarried status partly based on their lack of meaningful access to marriage. In
more specific guidance on same-sex couples, the report explained that “[n]o
matter how long they live together, same-sex couples are excluded from marital
benefits because the law specifically defines marriage in terms of opposite-sex
relationships.” 182 The implication, of course, is that many same-sex couples
would get married if only they could. In this view, same-sex couples are
marriage-like in ways that some of their unmarried counterparts (cohabiting
divorcees, for example) are not.
Leaders from the lesbian and gay community bolstered this specific focus
on the relationship between sexual orientation and marriage. In testimony
regarding employee benefits, Joyce Nordquist from the Los Angeles Lawyers for
Human Rights, a lesbian and gay bar association, explained:
If I were a married woman with a husband, my employer would
pay about $650 more a year for my benefits, providing insurance
for my husband[,] than they do for me as a single person. As a
178
Id. at 18-19.
See id. at 24.
180
Id. at 79.
181
Id.
182
Id.
179
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lesbian I don’t expect to get married in the near future so I’m
stuck without this and that’s my focus. 183
Marriage both offered a route to benefits for non-gay employees and represented
an unrealistic hope for their gay colleagues. For Nordquist, domestic partner
benefits constituted a remedy to the sexual-orientation discrimination inherent in
the use of marriage for benefits purposes.
The Task Force’s own research reports reflected the importance of marriage
access for same-sex couples and situated domestic partnership as a stop-gap
measure. The research team on gay and lesbian couples noted that while the
problem of marital status discrimination “can be overcome in the case of
heterosexual couples by getting married . . . no such formal option exists for
homosexual couples, since marriage is prohibited to them . . . .” 184 In one of its
reports, it explained that “marriage does not need to be the primary interest here,
since public recognition of marriage as a heterosexual stronghold is so fierce.
But there are benefits and a status that marriage bestows on a couple that
homosexuals must eventually achieve.” 185
The research team framed nonmarital recognition as a practical measure to
aid same-sex couples in a time when marriage recognition seemed unrealistic. It
explained that even though “[t]he obvious solution . . . would seem to be a
relaxing of the marriage laws[,]” “it is likely that the public debate would be, at
the very least, heated and divisive.” 186 Therefore, the team recommended
a middle course, which provides recognition of gay and lesbian
relationships, documents and binds their commitment in a
manner that can satisfy the courts, or any agencies which might
have a genuine interest in the existence and legitimacy of such
relationships, and yet does not encroach on the sensitive territory
of heterosexual marriage. 187
Same-sex couples’ lack of recognition was framed in part by their lack of access
to marriage; domestic partnership – even when open to same-sex and differentsex couples – was conceptualized as a moderate, compromise position that
sounded more in the register of sexual-orientation equality than family
183
Testimony of William Weinberger & Joyce Nordquist, Los Angeles Lawyers for
Human Rights, Employee Benefits for Domestic Partners, in Task Force on Family
Diversity, City of Los Angeles, Transcript of Public Hearings 185, 185 (1987).
184
Los Angeles City Task Force on Family Diversity, Research Team on Gay and
Lesbian Couples 22 (May 20, 1987), in Task Force on Family Diversity, City of Los
Angeles, Supplement (Part One), Reports of Research Teams S-192 (on file with author).
185
Id. at 15.
186
Id.
187
Id.
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diversity. 188 Even at this early point, domestic partnership seemed a lower status
carved out for same-sex couples to avoid recognizing same-sex marriage. 189
In some ways, the reports reflected Coleman’s own complicated views on
domestic partnership and marriage for same-sex couples. The research team was
composed of University of Southern California law students working under the
direction of Coleman, who served as an adjunct professor. 190 Coleman came to
advocacy on behalf of unmarried individuals after he discovered he could not
marry his same-sex partner. They held a wedding in 1981 and emphasized its
lack of legal effect. 191 And they married as a legal matter in California in
2008. 192
While Coleman remained committed to a vision that made marriage less
important to the distribution of rights and benefits, he also wanted same-sex
couples to have access to marriage and understood his framework as one that
worked with, rather than in opposition to, marriage. 193 In fact, on numerous
occasions, Coleman carefully situated his efforts as an embrace and addition to,
rather than denigration of, marriage. 194 Domestic partnership constituted both an
alternative to marriage for all couples and an expedient solution for same-sex
couples. In 1989, Coleman called a proposal by the California State Bar
Conference of Delegates to open marriage to same-sex couples a “‘nice
academic exercise . . . too far ahead of its time.’” 195 Indeed, in Baehr’s
aftermath, he traveled to Hawaii to urge lawmakers to pass an inclusive domestic
partnership law as a way to sidestep the question of same-sex marriage. 196
After receiving wide-ranging public testimony and extensive reports from
its research teams, the Task Force recommended the provision of domestic
partner benefits for unmarried couples. In addressing problems of definition and
authentication, advocates experienced pressure to make domestic partnership
sufficiently marriage-like to encourage local governments and employers to
adopt the concept.
188
See Memorandum to Los Angeles City Task Force on Family Diversity from
David Link 3 (Dec. 1, 1986), in Task Force on Family Diversity, City of Los Angeles,
Supplement (Part Two), Reports of Research Teams S-8322 (on file with author).
189
This runs contrary to the idea that domestic partnership had a pre-Baehr
existence as a true alternative to marriage and that arguments that domestic partnership
continued a second-class status are a recent invention. See Schacter, supra note 6, at 388.
190
See University of Southern California Law Center, Rights of Domestic Partners,
Prof. Thomas F. Coleman, Syllabus at 1 (1988) (on file with author).
191
See id. at 100-02.
192
See id. at 116.
193
See COLEMAN, supra note 176, at 106.
194
See Michael D’Antonio, Unmarital Bliss, L.A. TIMES MAG., Apr. 9, 2000, at 20;
Philip S. Gutis, Small Steps Toward Acceptance Renew Debate on Gay Marriage, N.Y.
TIMES, Nov. 5, 1989, at D1.
195
See Gutis, supra note 194.
196
See COLEMAN, supra note 176, at 108-10; Thomas F. Coleman, The Hawaii
Legislature has Compelling Reasons to Adopt a Comprehensive Domestic Partnerships
Act, 5 LAW & SEXUALITY 541, 544-45 (1995).
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The Task Force recommended a definition that included two individuals
who “reside in the same household,” “share the common necessities of life,”
“have a mutual obligation of support,” are at least 18, unmarried, and
unrelated. 197 The definition did not require an intimate relationship, but the
restriction on blood relatives evidences limited thinking outside the romantic
couple. And the supporting arguments and underlying testimony demonstrate
that the Task Force had in mind intimate, coupled relationships. Achtenberg, the
Lesbian Rights Project’s Directing Attorney, 198 supplied influential testimony
that hewed to the marital model. In providing recommendations on eligibility
and authentication that shaped the Task Force’s guidance, 199 Achtenberg
explained:
If Susie lives with Aunt Maud and Aunt Maud is somebody who
should be eligible for this kind of benefit – we are talking about
the truth of most peoples [sic] living situations, we’re talking
about their mated relationships and we are talking about the
ability of an adult to provide for his or her mate and in that
respect, I don’t believe that the argument about Aunt Maud is a
valid one. We would have to figure out how people can provide
for extended families in order to answer this particular question.
I don’t think that’s a viable solution. Including Aunt Maud
basically would guarantee that the price tag would be so high
that there’s no way that you could extend the benefit to those for
whom I believe it should be intended. 200
To make her case convincing both to officials dealing with city budgets and
employers and insurers considering costs, Achtenberg drew a line between those
unmarried families that looked like married couples (“mated relationships”) and
those that did not (e.g., the aunt/niece pair). Even if Achtenberg held more
capacious views on family policy, she provided testimony to accommodate
concerns by influential stakeholders. Focusing on marriage-like relationships
provided the best way of doing so. Following Achtenberg’s advice, the Task
Force recommended domestic partner benefits for city employees, whether in
“same-sex or opposite-sex relationships.” 201
197
L.A. Task Force Report, supra note 177, at xxv.
Testimony of Roberta Achtenberg, Directing Attorney, Lesbian Rights Project,
Gay and Lesbian Couples/Families, in Task Force on Family Diversity, City of Los
Angeles, Transcript of Public Hearings 253 (1987).
199
See L.A. Task Force Report, supra note 177, at 79.
200
Testimony of Roberta Achtenberg, Directing Attorney, Lesbian Rights Project,
Gay and Lesbian Couples/Families, in Task Force on Family Diversity, City of Los
Angeles, Transcript of Public Hearings 257 (1987).
201
L.A. Family Task Force Report, supra note 177, at 100. Recognizing the longterm planning involved with healthcare coverage, the Task Force made recommendations
it hoped could be implemented immediately. In 1992, the city made its first significant
advance, implementing the recommendation for family leave when an employee’s
domestic partner is ill or dies. L.A. MUN. ORD. 168238 (1992).
198
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2. The Legislature’s Joint Select Task Force on the Changing Family
While local stakeholders noted their lack of power to remedy many
inequalities experienced by same-sex couples, including legal exclusion from
marriage, 202 state-level efforts largely skirted the specificity of same-sex
couples’ experience and did not contemplate changes to the marriage laws. Such
silence, however, should not be read as building the case against marriage.
Rather, reform at the state level, despite LGBT advocates’ efforts, sought to
channel more different-sex couples into marriage while continuing to exclude
same-sex couples. 203
The California Legislature established the Joint Select Task Force on the
Changing Family in 1987; the Task Force met throughout 1988 and issued its
report in April 1989. 204 During the process, the Task Force’s Couples
Workgroup, which included Coleman as well as the executive director of the
California Catholic Conference, 205 submitted its own report to the larger body. 206
The Couples Report focused most of its attention on channeling different-sex
couples into marriage. Same-sex couples’ distance from marriage did not
represent an attempt to imagine family recognition outside of marriage but rather
reflected objections to addressing same-sex couples as families.
After an extensive discussion of married couples and their importance, 207
the Couples Report made recommendations for strengthening marriage. 208 To
push different-sex couples into marriage, the report recommended recognition of
common law marriage, arguing that rather than “channel people into formal,
ceremonial marriages,” the “abolition of common law marriage” allowed couples
“to cohabit without the obligations and benefits of formal marriage.” 209
Accordingly, “legalizing common law marriage would discourage
cohabitation.” 210 The Couples Workgroup prioritized marriage and denigrated
unmarried cohabitation as it recommended a way to legally marry more
202
L.A. Task Force Report, supra note 177, at 82.
See COLEMAN, supra note 176, at 82. This resonates with Margot Canaday’s
concept of the “legal regime of heterosexuality,” in which the state “punish[es]
homosexuality and reward[s] marriage.” Margot Canaday, Heterosexuality as a Legal
Regime, in THE CAMBRIDGE HISTORY OF LAW IN AMERICA, VOL. III (Michael Grossberg
& Christopher Tomlins eds., 2008)
204
Joint Select Task Force on the Changing Family, First Year Report, Planning a
Family Policy for California (April 1989) (on file with author).
205
COLEMAN, supra note 176, at 82.
206
Joint Select Task Force on the Changing Family, Couples Workgroup,
Preliminary Report, “California Couples: Recognizing Diversity and Strengthening
Fundamental Relationships” (Oct. 1988) (on file with author).
207
See id. at 14-19.
208
See id. at 10-25.
209
Id. at 27. For an exploration of the abolition of common-law marriage in
California and its potential revival through recognition of cohabitation agreements, see
Goldberg, supra note 118.
210
California Couples, supra note 206, at 27.
203
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different-sex couples. For those who could marry, the message was clear: They
should.
Consistent with this message, the Couples Workgroup also sought to
remove barriers to marriage for different-sex couples. For older couples, for
whom “remarriage may be economically unfeasible because of legal rules that
end survivor benefits upon remarriage,” the report recommended a “Vesper
Marriage Act.” This “form of marriage” would be “limited to persons age 60
and older” and would allow them to be treated as single for tax and pension
purposes. 211 Similarly, the report recommended removal of the “marriage
barrier” experienced by disabled (different-sex) couples by virtue of “deeming,”
in which a spouse’s income is considered available for purposes of determining
public benefits eligibility. 212
While the workgroup sought to channel different-sex couples into marriage,
it defined problems facing same-sex couples by lack of marriage access but did
not recommend such access. 213 Instead, it merely attempted to establish that
same-sex couples form “family relationships.” 214 Still, the workgroup
recommended that “domestic partners,” which included both same-sex and
different-sex couples, be included in laws governing wrongful death actions – a
right denied by the Elden court – and insurance discrimination. 215
After considering the Couples Workgroup’s report, the Task Force itself
made no recommendations explicitly aimed at “domestic partners” or same-sex
couples. Instead, it focused on the workgroup’s recommendations aimed at
strengthening marriage and channeling more different-sex couples into
marriage. 216 Ultimately, Coleman could not convince his colleagues to support a
vision that either protected unmarried couples qua unmarried couples or
meaningfully included same-sex couples as part of family-law reform. 217
3. Los Angeles Consumer Task Force on Marital Status Discrimination
Back in Los Angeles, Coleman moved forward on local initiatives that
offered promise to unmarried individuals. Following up on recommendations by
the Family Diversity Task Force, the City Attorney convened the Consumer Task
Force on Marital Status Discrimination. 218 Rights of unmarried individuals and
211
Id. at 31; Planning a Family Policy, supra note 204, at 80, 83.
Couples Report, supra note 206, at 31; Planning a Family Policy, supra note 204,
at 80, 83-84.
213
Couples Report, supra note 206, at 33-34.
214
Id. at 34.
215
See id. at 40-44.
216
See Planning a Family Policy, supra note 204, at 83-84.
217
The California Commission on Personal Privacy, a 1982 state task force that
included Coleman, recommended that the legislature “enact procedures allowing members
of California’s ‘alternative families’ . . . to declare their family status.” Report of the
Comm’n on Personal Privacy, Executive Summary 89 (Dec. 1982) (on file with author).
218
Office of the City Attorney, Los Angeles, CA, Consumer Task Force on Marital
Status Discrimination, Final Report, “Unmarried Adults: A New Majority Seeks
Consumer Protection” 1 (Mar. 1990) (on file with author).
212
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couples, one of many areas addressed by the earlier body, became the sole
charge of the new group, which Coleman chaired.
The Task Force mission and its subsequent report reflected resistance to
marriage’s special status. As the earlier task force had done, the Consumer Task
Force opened its Final Report, issued in 1990, by announcing that “[t]he
majority (55%) of adults in the City of Los Angeles are not married.” 219
Lesbians and gay men constituted part of a broader group of unmarried
individuals harmed by the privileging of marriage. 220 The report also defined the
various ways in which many individuals are channeled away from marriage:
“Economic disincentives and so-called ‘marriage penalties’ discourage many
elderly or disabled adults from marrying. Gay men and lesbians, of course, can’t
marry their partners because the law does not recognize same-sex marriage.” 221
Even as lesbian and gay singleness was defined by exclusion from marriage,
lesbians and gay men were part of a broader constituency lacking meaningful
access to marriage.
Public testimony received by the Task Force revealed a competing
perspective – one that viewed marriage access as a meaningful distinction that
both harmed same-sex couples and distinguished them from their different-sex
unmarried counterparts. LGBT community representatives highlighted the
unique plight of same-sex couples and the salience of sexual orientation.
William Bartlett of AIDS Project Los Angeles testified that while marital status
discrimination may
pose serious problems for unmarried heterosexual couples
affected by AIDS, . . . there is a distinct difference. For
heterosexuals, marital status is a matter of choice . . . For a gay
or lesbian couple, marital status is not a matter of choice but a
matter of restriction. 222
The HIV/AIDS epidemic, which demonstrated the need for family recognition
for gay male couples, highlighted the punitive effects of the state’s restrictive
marriage law. 223 Indeed, Bartlett explained that many individuals living with
AIDS bear “the burden of discrimination for not partaking in an institution from
which by law they are excluded.” 224 In this sense, some LGBT advocates urged
the Task Force to attend to the unique needs of the LGBT population, whose
vulnerability was defined partly by their exclusion from marriage. Even as the
Task Force attempted to define the primary injury in terms of marital-status
219
Id. at vi.
At the state level, Coleman urged families to register as “unincorporated
nonprofit associations,” but this did not produce tax or legal benefits. Rie Becklund, The
Word ‘Family’ Gains New Meaning, L.A. TIMES, Dec. 13, 1990, at A1.
221
Id. at 9.
222
William Bartlett, Asst. Prog. Mgr., Case Mgmt., AIDS Project Los Angeles,
Testimony to the Consumer Task Force on Marital Status Discrimination 1 (Jan. 29,
1990), in Supplement to Final Report (Source Materials) 256 (Mar. 1990) (on file with
author).
223
See GEORGE CHAUNCEY, WHY MARRIAGE? 104 (2004).
224
Bartlett, supra note 222.
220
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discrimination, others raised the sexual-orientation discrimination at the heart of
a regime organized around marriage.
4. San Francisco Mayor’s Task Force on Family Policy
As domestic partnership gained traction in San Francisco, the centrality of
marriage both provided the reference point for those pushing the concept and
animated the objections of those opposed. While the domestic partnership
proposals included all unmarried couples, much of the attention – both
supportive and hostile – focused on same-sex couples.
In 1989, seven years after Mayor Feinstein vetoed San Francisco’s first
attempt, the Board of Supervisors again passed a domestic partnership ordinance.
The legislation would have enabled unmarried same-sex and different-sex
couples to register with the city and gain “domestic partner” status. It defined
domestic partners as “two people who have chosen to share one another’s lives
in an intimate and committed relationship,” share a residence, and assume joint
responsibility for basic living expenses. 225 Even as the ordinance embraced a
relatively inclusive notion of nonmarital recognition, intimate couples
constituted the targets.
Considerable attention focused on the marriage-like qualities of domestic
partnership for same-sex couples in particular. The largely symbolic ordinance
would have provided few substantive rights. Indeed, the lack of substantive
content may have contributed to both the importance of marriage’s cultural
tropes and the salience of sexual-orientation equality in framing domestic
partnership. Without meaningful rights and benefits, the social status conferred
by domestic partnership seemed paramount. Reporters describing the new
ordinance noted the interest of lesbians and gay men “to get married.” 226 The
San Francisco Chronicle announced that “[s]cores of gay couples, who see the
opportunity for a symbolic marriage, plan to register en masse at City Hall and
follow the event with a giant wedding reception.” 227
Nonetheless, officials hoped to pave the way for health insurance and
bereavement leave for city employees in domestic partnerships. To that end, the
ordinance recommended a task force to study the implementation and effects of
domestic partnership. 228 The task force was charged with considering not only
unmarried couples but also extended family members for inclusion in the city’s
health plan. 229
225
S.F. ORD. § 4001 (1989) (repealed Nov. 7, 1989).
Elaine Herscher, New Trend for Gays – Getting Married, S.F. CHRON., June 24,
1989, at A1.
227
Id.
228
Miranda Kolbe, Domestic Partners Law Imminent in S.F.; Near Unanimous
Support Seems to Guarantee Passage of the Legislation, but Its Legal Effect Will be
Minimal, 16 GAY COMM’Y NEWS 1 (1989).
229
Kathy Bodovitz, Domestic-Partner Debate May Key on Economics, S.F.
CHRON., Oct. 16, 1989, A1.
226
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Not all San Franciscans celebrated the domestic partnership ordinance.
Social-conservative activists, who objected to the perceived endorsement of
same-sex relationships, 230 led a successful initiative campaign, defeating the law
at the polls in November 1989. 231 Nonetheless, the task force remained in
place. 232 As in Los Angeles, a task force addressing family diversity emerged
from LGBT leaders’ domestic partnership activism. 233 Whereas Coleman
advocated domestic partnership in Los Angeles, Supervisor Britt, who had
replaced slain Supervisor Harvey Milk, ushered domestic partnership through the
Board of Supervisors. Achtenberg, a prominent LGBT rights lawyer, helped
lead San Francisco’s task force.
The Mayor’s Task Force on Family Policy issued its report in 1990, a few
months after the domestic partnership ordinance’s defeat at the polls. 234 The
report presented a family-diversity vision that accommodated San Francisco’s
non-traditional families while nonetheless recognizing the enduring legacy of the
conventional, married family. 235 As its predecessor in Los Angeles had, the Task
Force defined “family” broadly:
a unit of interdependent and interacting persons, related together
over time by strong social and emotional bonds and/or by ties of
marriage, birth, and adoption, whose central purpose is to create,
maintain, and promote the social, mental, physical and
emotional development and well being of each of its
members. 236
In this way, the Task Force advanced a concept of family that stressed mutual
support and interdependence and blurred the lines between marital and
nonmarital families. All such families were seen to serve similar socially
significant purposes.
While the Task Force concluded that “it is not feasible for the City to
provide health care benefits to all extended family members at this time,” it
moved forward with proposals to provide health insurance benefits to the
partners and children of city workers. 237 The affidavit proposed to render
couples eligible for domestic partner benefits defined family and dependency in
relation to marriage. As it had in Los Angeles, marriage made domestic
partnership legible. Domestic partners must “live in the same household” and
“share the common necessities of life” and must not be “related by blood to one
230
Valerie Basheda, Domestic Partnership Ordinance Stalls, L.A. TIMES, July 7,
1989, at A3.
231
Id.
232
Marc Sandalow, New Benefits for Unwed Partners; Far-Reaching Proposal for
S.F. City Workers, S.F. CHRON., Mar. 29, 1990, at A1.
233
Letter of Transmittal, from Roberta Achtenberg, Esq., to Hon. Art Agnos, Mayor,
and People of San Francisco, in Approaching 2000: Meeting the Challenges to San
Francisco’s Families (June 13, 1990) (on file with author).
234
Approaching 2000, supra note 233.
235
See id. at 1.
236
Id.
237
Id. at 27-29.
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another closer than would bar marriage.” 238 The Task Force declared that “[t]he
obligations and financial responsibilities embodied in the affidavit are exactly
the same as those assumed by husbands and wives under California law.” 239
Indeed, “in order to enroll a domestic partner for health insurance, a City
employee [would] have to assume the same financial obligations assumed by
married couples.” 240
Such requirements were meant to ensure the commitment of the relationship
and prevent presumably more casual relationships from obtaining costly benefits,
but the requirements also situated the concept of domestic partnership as
marriage-like rather than a more expansive way model of recognition. Not only
were those not in intimate, coupled relationships outside the scope of domestic
partnership, but the relationships within the ambit of domestic partnership were,
in significant ways, expected to look and act like married couples. In fact, the
Task Force report assured the Mayor that since city employees “will become
liable for food, shelter and medical care for the domestic partner[,] employees
will be unwilling to assume this obligation for mere friends, just as they would
be unwilling to marry a mere friend in order to provide health insurance.” 241
The appeal to marriage as a benchmark also addressed the reluctance of
insurers to provide domestic partner coverage, a significant practical hurdle to
domestic partnership benefits in the 1980s and early 1990s. 242 Insurers worried
about high costs of healthcare, particularly because of the association at the time
between HIV/AIDS and the gay male population in San Francisco. 243 In fact,
one of the agreements that the Task Force reached with a willing insurer
included an increased premium for domestic partners and the annual reporting of
HIV-related costs to the city. 244 The marriage-like domestic partnership
standard, it was thought, would minimize some of the risk assumed by insurers
and reduce the number of individuals fraudulently claiming domestic partnership
status for the purpose of obtaining health insurance. 245
The Task Force recommendations drew immediate opposition. As the San
Francisco Chronicle observed, “Several of the proposals are nearly identical to
elements of the landmark domestic partners law that was rejected by voters in
November, eliciting immediate criticism from opponents.” 246 One activist
objected: “The voters have spoken . . . I see no reason why those people would
change their minds. As far as I’m concerned, [domestic partnership] undermines
traditional marriage because it brings other relations on par.” 247 Nonetheless,
238
Id. at 30-31.
Id. at 31 (emphasis added).
240
Id.
241
Id.
242
See id.
243
See id.
244
See id. at 34-35.
245
See id. 31-32.
246
Marc Sandalow, Cost Estimate on Domestic Partners Policy, S.F. CHRON., June
13, 1990, at A1.
247
Sandalow, supra note 232.
239
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Mayor Art Agnos defended the Task Force recommendations “progressive, profamily policy.” 248
E. Domestic Partnership in the Big Cities
While domestic partnership gained the most traction in small, progressive
cities during the 1980s, the task force work in Los Angeles and San Francisco
laid the foundation for advances in larger cities in the early 1990s. As domestic
partnership became a reality, marital norms furnished important guideposts for
both local officials and insurance carriers. Within LGBT constituencies,
marriage provided resonant symbols with which to understand and celebrate
domestic partnership. While many of the major developments detailed in this
section predate Baehr, some of the advances on domestic partnership occurred
after Baehr. It is telling that little changed in the ways in which both supporters
and opponents of domestic partnership deployed marital norms.
1. San Francisco
News that Supervisor Britt planned to bring the issue of domestic
partnership back to voters in November 1990 surfaced the same day the Task
Force released its report. 249 A year after voters rolled back domestic partnership,
they approved it. 250 Proposition K provided for domestic partnerships between
“two unmarried, unrelated people over the age of 18 who live together and agree
to be jointly responsible for their basic living expenses.” 251
While both same-sex and different-sex couples were included, the public
discussion focused on the city’s lesbian and gay population. The official voter
information pamphlet noted that “[t]here is no process for lesbians and gay men
to formally establish and record their relationships.” 252 The proponents’ official
arguments explained that “lesbian and gay couples cannot get married,” yet
“[l]ike all couples, they want visible recognition from their friends, families and
neighbors.” 253 Opponents, who argued that domestic partnership “places even
the most temporary of human relationships on the same level as marriage and
family,” failed to convince a majority of voters. 254
On February 14, 1991, the first day that couples could register their
domestic partnerships, the scene mirrored many of marriage’s ceremonial
248
Id.
Marc Sandalow, Britt Wants New Vote in November on Gay Couples Issue, S.F.
CHRON., June 14, 1990, at A1. Even before voters weighed in again on domestic
partnership, the city’s Civil Service Commission adopted a family-leave policy that
included the definition of “family” urged by the Task Force. Kathy Bodovitz, S.F.
Refines Family Leave Policy, S.F. CHRON., Oct. 16, 1990, at A1.
250
S.F. MUN. CODE§ 62.1 (1991).
251
San Francisco Voter Information Pamphlet & Sample Ballot 153 (Nov. 6, 1990).
252
Id.
253
Id.
254
Marc Sandalow, Small S.F. Majority for Domestic Partners Measure, S.F.
CHRON., Oct. 8, 1990, at A1.
249
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elements. Same-sex couples walked alongside different-sex couples who had
come to City Hall to get married on Valentine’s Day. 255 Over the years, this
marriage symbolism continued as legal and cultural elements were joined in
government-sponsored ceremonies. In 1996 – a post-Baehr world – under an
ordinance authorizing public officials to perform domestic partnership
ceremonies, Mayor Willie Brown presided over a mass ceremony in which
couples took vows of partnership as the mayor declared them “lawfully
recognized domestic partners.” 256 Supervisor Carole Midgen, the ordinance’s
openly gay author, explained, “It’s a joyful occasion that can be celebrated by
family and loved ones. It’s fair to say it’s a wedding of sorts.” 257 Even as
domestic partnership included all unmarried couples, the ceremonial and cultural
aspects focused on same-sex couples. In fact, only one different-sex couple
participated in the 1996 ceremony. 258
2. Los Angeles
Task Force work in San Francisco removed many of the insurance barriers
to a meaningful domestic partnership policy, such that the ordinance adopted in
1990 could be implemented with relative ease. But the struggle for domestic
partnership in Los Angeles in the early 1990s reveals the significance of
insurance carriers’ resistance to the concept and the resulting difficulties with
implementation. The centrality of marriage both informed such resistance and
provided the arguments used to overcome it.
As they had in San Francisco, task force recommendations in Los Angeles
aided attempts to implement domestic partnership policies. But while the city
began exploring domestic partner benefits soon after the Family Diversity Task
Force issued its report, it was not until 1993 that the City Council passed a
resolution, pushed by openly gay Councilwoman Jackie Goldberg, providing
health and dental benefits to city employees’ unmarried (same-sex or differentsex) partners. 259 Then, in 1996, the County Board of Supervisors voted to extend
healthcare benefits to its employees’ unmarried (same-sex and different-sex)
partners. 260 It had voted to extend dental benefits in 1992. 261
255
Katherine Bishop, Not Quite a Wedding, but Quite a Day for Couples by the Bay,
N.Y. TIMES, Feb. 15, 1991, at A16.
256
Richard C. Paddock, 165 Gay Couples Exchange Vows in S.F. Ceremony, L.A.
TIMES, Mar. 26, 1996, at A1.
257
Richard C. Paddock, S.F. to Allow Civil Ceremonies for Gay Couples, L.A.
TIMES, Jan. 30, 1996, at A3.
258
They commented: “We’ve thought about [getting married], but one of us always
chickens out.” Paddock, supra note 256.
259
Benefits for Unmarried Partners OKd by Council, L.A. TIMES, Nov. 24, 1993, at
C2.
260
L.A. CTY. CODE § 2.210. See County Extends Health Benefits to Employees’
Domestic Partners, L.A. TIMES, Dec. 20, 1995, at C4.
261
E.S. Rainey, Goldberg to Seek Benefits for Unmarried Partners, L.A. TIMES,
Nov. 16, 1993, at C3. In 1999, the County opened its (inclusive) domestic partnership
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Insurance carriers, vital participants in employment-based domestic
partnership, had resisted coverage that departed from a model rooted in the
marital family. Accordingly, the city and county had struggled to find insurance
carriers willing to offer coverage. Indeed, a 1993 report of the AntiDiscrimination Task Force of the California Insurance Commissioner, chaired by
Coleman, documented the repeated refusal of insurers to provide domestic
partner coverage. 262 A representative from Cigna informed the county in 1992
that it “would not expand the definition of dependent unless required by law.” 263
Kaiser Permanente, which formed a Domestic Partners Task Force to consider
the issue, concluded in 1992 that it would “not expand or customize the
definition of eligible dependents . . . .” 264 It grouped domestic partners with
other “dependent relationships that do not fall into our current definition of an
eligible dependent,” including “parents and other relatives, some children and
significant others.” 265
In response, those seeking to convince insurers to offer coverage compared
domestic partnerships to covered relationships – marital families – and
distinguished them from other excluded relationships. As a union representative
argued to Kaiser Permanente’s Division Manager in 1991, “the nuclear family is
the basis for the current definition of dependent as including a subscriber’s legal
spouse and dependent children.” 266 But the “nature of the nuclear family in the
United States has changed dramatically in the last two decades, creating many
households comprised of domestic partners and the children of one or both
partners.” 267 Accordingly, expanding “the definition of dependent to include
domestic partners would . . . be consistent with the traditional focus on . . . an
employee and his/her nuclear family.” With this reasoning, Kaiser Permanente
could provide coverage for domestic partners “without extending it even further
to include a subscriber’s parents, for example.” 268
Even before Baehr, through dialogue among union representatives,
government officials, and insurance carriers, domestic partners were cast as like
spouses – and as unlike other family relationships. They gained support by
registry to the general public. See Nicholas Riccardi, County to Form Domestic Partner
Registry, L.A. TIMES, Mar. 24, 1999, at C1.
262
See Anti-Discrimination Task Force Report, supra note 151, at 3.
263
Letter from Kenneth R. Goulet, Senior Marketing Representative, Cigna, to Bud
Treece, Vice Chair, Coalition of County Unions, Aug. 7, 1992, in Anti-Discrimination
Task Force Report, supra note 151, at 62-63.
264
Letter from Darleen Cho, Manager, Special Accounts, Kaiser Permanente, to Bud
Treece, Vice Chair, Coalition of County Unions, Aug. 10, 1992, in Anti-Discrimination
Task Force Report, supra note 151, at 61.
265
Id.
266
Letter from Phil Ansell, Senior Field Representative, SEIU Local 535, to
Michael Leggett, Division Manager, Kaiser Permanente, July 11, 1991, in AntiDiscrimination Task Force Report, supra note 151, at 58, 59.
267
Id.
268
Id.
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distinguishing themselves from other dependency relationships that could also
have benefited from expanded coverage.
F. Domestic Partnership in the Private Sector
Those behind local domestic partnership ordinances anticipated that
domestic partnership recognition, while providing few governmental rights,
would help unmarried individuals access employer-sponsored healthcare
coverage for their families. Private companies, they hoped, would recognize
their employees’ domestic partnerships and grant the same fringe benefits
offered to married employees. In this way, the interaction between legal
recognition and employer-sponsored healthcare coverage created a mutually
constitutive relationship between private and public norms. Proof of local
domestic partnership registration could pressure employers to provide benefits,
and many employers required a legal domestic partnership registration.
For their part, private companies and colleges and universities were some of
the first entities to offer domestic partner benefits. 269 Because family healthcare
– an expensive proposition – was tied to employment, lesbians and gay men had
concrete incentives to push for employer recognition of their relationships, while
employers had strong financial incentives to limit recognition. The United
States’ privatized, employer-centered healthcare regime created a system in
which both private and public employers attempted to balance equality and
retention concerns with cost management. 270 Limiting recognition to same-sex
couples – and thereby bolstering the priority of marriage as the relevant criterion
– constituted a workable (and increasingly popular) strategy. Again, these
developments occurred both before and after Baehr, and the emerging focus on
same-sex couples in pre-1993 workplace policies suggests little change in the
relevance of marriage once Baehr struck.
Before Baehr, in Los Angeles in 1992, MCA became the first Hollywood
studio to offer benefits to the same-sex partners of lesbian and gay employees. 271
The following year, MCA president Sidney Sheinberg and media mogul Barry
Diller campaigned for the benefits industry-wide. In a letter to studio executives,
they situated the issue of marriage access, rather than marriage choice, as
central: “Basing benefits on marriage is not mandated by law and a benefit that
recognizes marriage as the only vehicle for extending benefits to the partners of
employees is a criterion that not all can meet.” 272 Other studios followed MCA’s
lead, with Paramount, Sony, Warner Bros., Walt Disney, and MGM providing
domestic partner benefits to lesbian and gay employees by 1996. 273 While some
269
In 1982, the Village Voice became the first company to offer domestic partner
benefits (including all unmarried partners).
270
See CHAUNCEY, supra note 223, at 74.
271
Scott Collins, Companies Offer Benefits to Same-Sex Partners of Employees,
L.A. TIMES, Nov. 6, 1995, at B8.
272
Id.
273
See id.; Better Benefits, L.A. TIMES, Jan. 4, 1996, at C5.
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studios made benefits available to all unmarried couples, most provided coverage
only to same-sex partners. 274
High-tech companies in Northern California also became leaders in the
provision of domestic partner benefits. While some adopted inclusive
policies, 275 others limited benefits to same-sex couples. 276 When in 1996 IBM
became the largest U.S. company to do so, a spokesperson explained that the
company excluded unmarried different-sex partners because those couples had
the option to get married. 277 Same-sex couples were required to sign an
affidavit declaring that their relationship approximates marriage – that they were
in a long-term, committed relationship and that they share a household. 278
In constructing a substitute status – rather than a true alternative to marriage
– employers suggested that marriage and domestic partnership shared central
features grounded in mutual support and commitment. Indeed, extension of
benefits to same-sex couples vis-à-vis domestic partnership policies encouraged
the same type of economically interdependent relationships that employer
policies incentivized for different-sex married couples. 279
Similarly, many colleges and universities emphasized marriage access over
choice and used marriage as the relevant benchmark. In 1992, before Baehr,
Stanford University became one of the first in the country to offer domestic
partner benefits. Its policy, which went into effect in 1993, provided for “two
individuals of the same gender who live together in a long-term relationship of
indefinite duration, with an exclusive commitment similar to that of marriage, in
which the partners agree to be financially responsible for each other’s well-being
and each others’ debts to third parties.” 280
Public universities represented a different struggle, since the battles were
heavily influenced by state law and government officials. Years after Baehr,
even as Governor Pete Wilson objected that domestic partner benefits
“devalu[ed] the institution of marriage and the family,” the UC Board of Regents
in 1997 voted to extend healthcare benefits to an employee’s same-sex domestic
274
Better Benefits, supra note 273; Chris Kraul, Workplace is Key to Push for
Lesbian, Gay Rights, Activists Say, L.A. TIMES, Oct. 16, 1995, at B1; Warner Bros.
Extends Medical Coverage to Same-Sex Partners, L.A. TIMES, July 1, 1993, at B2. In
1991, Lotus Development Corporation, in Cambridge, Massachusetts, became the first
company to offer same-sex-only benefits. Polikoff notes the significance of this move.
See POLIKOFF, supra note 21, at 61.
275
See Software Maker Extends Benefits to Unmarried Spouses, L.A. TIMES, July
15, 1992, at B2.
276
See Genentech Inc. Offers Benefits to Gay Domestic Partners, L.A. TIMES, May
26, 1994, at B2.
277
Rajiv Chandrasekaran, IBM to Offer Benefits Plan to Gays’ Partners, L.A.
TIMES, Sept. 20, 1996, at B1.
278
Id.
279
See Deborah A. Widiss, Changing the Marriage Equation, 89 WASH. U. L. REV.
721, 737-38 (2012).
280
M.V. Lee Badgett, Equal Pay for Equal Families, 80 ACADEME 26, 29 (1994)
(quoting Stanford policy) (emphasis added).
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partner or blood relative – both pairs legally excluded from marriage. 281 In 1999,
the California State University trustees extended healthcare benefits to same-sex
partners of employees and different-sex partners 62 or older – couples either
completely excluded from, or facing significant barriers to, marriage. 282
The expansion of domestic partnership policies at private employers began
before Baehr launched marriage onto the national radar and continued in earnest
after Baehr. While it is tempting to link the growing preference for same-sexonly domestic partnership policies to the impact of Baehr and focus on marriage
for same-sex couples, the timing of coverage in California shows that the shift
toward more restrictive policies predates Baehr. More importantly, the
preceding discussion shows that even inclusive policies adopted before Baehr
evince the centrality of marriage in understanding and constructing domestic
partnership and the salience of marriage access over marriage choice.
G. State Domestic Partnership in a Post-Baehr World
Progress on domestic partnership at the state level did not begin until the
mid-1990s – after Baehr. Clearly, even after same-sex marriage became a
national policy issue, LGBT movement advocates continued to press for
nonmarital recognition and they worked to include different-sex couples. Yet in
these efforts, marriage continued to shape the fight for domestic partnership, and
domestic partnership shaped the fight for marriage. Advocates would find that
the normative weight of marriage continued to construct the terms of domestic
partnership and limit the inclusion of different-sex couples.
1. Coupling Issues – Marriage and Domestic Partnership
In 1994, the legislature narrowly passed a domestic partnership bill,
Assembly Bill (AB) 2810, that would extend rights to both same-sex and
different-sex couples. 283 The bill defined domestic partners as “two adults who
have chosen to share one another’s lives in an intimate and committed
relationship of mutual caring.” 284 By focusing on intimate couples committed to
mutual care and support, the proposed law constructed domestic partners as
281
Kenneth R. Weiss, Partner Benefits for Gay UC Staff Advance, L.A. TIMES, Nov.
21, 1997, at A3. See also COLEMAN, supra note 176, at 184-85. The UC system
currently provides health and welfare benefits for domestic partners who are same-sex
couples or different-sex couples where one partner is at least 62. Non-health and welfare
benefits, namely survivor benefits, are available to different-sex unmarried couples who
do not meet this age requirement. See University of California, Benefits of Domestic
Partners 2-3 (July 2010). Some health and welfare benefits are available to Adult
Dependent Relatives enrolled before 2004. See University of California, Group
Insurance Eligibility Factsheet 4 (Oct. 2011).
282
Kenneth R. Weiss, Cal State Panel OKs Giving Health Benefits to Partners, L.A.
TIMES, Nov. 17, 1999, at A3.
283
AB 2810 (1994). In 1991, a California legislator introduced a bill to legalize
same-sex marriage, but it garnered no support in the Assembly Judiciary Committee. See
1991 Cal. ALS 167.
284
AB 2810 (1994).
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idealized versions of a modern concept of marriage. Even as marriage did not, as
a legal matter, contain the specific elements to be imposed on domestic partners,
the domestic partnership language translated the social attributes of marriage
into legal requirements for unmarried couples. 285
Opposition quickly focused on the inclusion of same-sex couples.
Assemblyman Bernie Richter complained that “[t]he real purpose of this bill is
to establish a state-sanctioned relationship for all people, but particularly for the
homosexual community, that is equal to marriage.” 286 Supporters countered that
the bill was “not even close” to “a same-sex marriage bill.” 287 And they
marketed the bill’s impact on older different-sex couples. 288
Yet opponents also worried about a broader attack on marriage. They
conceptualized domestic partnership for same-sex couples as detracting from the
heterosexual, married family and argued that the inclusion of different-sex
couples denigrated marriage by providing an alternative for those who could
(and presumably should) get married. Reverend Louis Sheldon, head of the
Orange County-based Traditional Values Coalition, claimed that domestic
partnership “infringe[d]” on the principle of “the man-woman relationship in the
context of marriage.” 289 Through this lens, the domestic partnership proposal
blurred the line between marriage and nonmarriage and, by replicating marital
norms in a nonmarital status, threatened to supplant the gendered definition of
marriage itself. Ultimately, Governor Pete Wilson vetoed the legislation,
declaring: “Government policy ought not to discount marriage by offering a
substitute relationship that demands much less.” 290
Largely in response to Baehr, Assemblyman William “Pete” Knight, in
1996, introduced AB 1982, which would prohibit California from recognizing
same-sex marriages from other states. 291 Opponents implemented a “poison pill”
strategy, amending the bill to recognize limited domestic partnership rights for
same-sex and different-sex couples. 292
285
As Mary Anne Case argues, the functional definition that nonmarital recognition
requires of unmarried couples is not mandated in marriage. See Marry Anne Case,
Marriage Licenses, 89 MINN. L. REV. 1758, 1774 (2005). Therefore, even as popular
understandings of marriage may have become more functional, marriage itself requires
none of the indicia of functionality explicitly covered in nonmarital schemes.
286
Jerry Gillam, Assembly OKs Rights Bill for Unwed Couples, L.A. TIMES, June 1,
1994, at A3.
287
Id. (quoting Assemblyman John Burton).
288
Carl Ingram, Senate OKs Bill on Rights for Unwed Couples, L.A. TIMES, Aug.
24, 1994, at A3.
289
Id.
290
AB2810 Veto Message (Sept. 12, 1994). See also Bettina Boxall, Ballot Fallout
Expected from Wilson’s Veto, L.A. TIMES, Sept. 13, 1994, at A3.
291
AB 1982 (1996). Ed Bond, Irreconcilable Differences on Gay Marriage, L.A.
TIMES, Feb. 20, 1996, at B3.
292
AB 1982 (1996) (amended Aug. 19, 1996). Carl Ingram, Bill Opposing Gay
Marriages Weakened, L.A. TIMES, July 11, 1996, at A3. See Assem. B. 1982, 1995-96
Leg., Reg. Sess. (Cal. 1995) (amended in Senate, July 11, 1996).
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Knight, who opposed domestic partnership on the ground that it would
“redefine marriage,” 293 complained that “[t]he amendments make this a terrible
bill.” 294 Senator Ray Haynes remarked: “A piece of garbage by any other name
still smells. All you are doing is calling a same-sex marriage something else.” 295
Social-conservative activists echoed those remarks. The Campaign for
California Families’ Randy Thomasson declared, “Either you believe marriage
should be between a man and a woman or you don’t . . . Domestic partnership is
tantamount to pseudo-gay marriage.” 296 Through this lens, domestic partnership
constructed a different kind of marriage – one that made gender differentiation
irrelevant and could therefore accommodate same-sex couples. Socialconservative opponents believed that the creation of domestic partnership – even
in a very limited form – implicated the very constitution of marriage.
At the same time, the bill did not have the consistent support of LGBT
leaders. The legislature’s first openly lesbian member, Assemblywoman Sheila
Kuehl, voiced her complaint with the combined bill: “The message of this bill, as
far as I’m concerned, is: ‘Well, there are the real people, the human beings, and
they get to get married. And then there is you guys. Instead of letting you get
married, we’ll give you something a little bit less.’” 297
With marriage on the political radar after Baehr, the lines drawn around
domestic partnership reflected broader positions regarding same-sex couples’
access to marriage. The legislation, by literally putting domestic partnership
side-by-side with a prohibition on same-sex marriage, framed domestic
partnership through the language of sexual-orientation equality (and inequality).
Republicans opposed the new version of AB 1982, and, after it narrowly passed,
Knight withdrew it. 298
2. Domestic Partnership Breakthrough (for Some)
While earlier efforts were unsuccessful, the state eventually enacted a
domestic partnership law in 1999, and it took effect on January 1, 2000. 299 The
law, AB 26, provided only two benefits – hospital visitation and health insurance
coverage for state employees. 300 Midgen, who had been elected to the state
293
Carl Ingram, Senate Panel OKs Bill Targeting Gay Marriages, L.A. TIMES, Aug.
13, 1996, at A3.
294
Ingram, supra note 292.
295
Carl Ingram, Same-Sex Nuptials Prohibition Stalls, L.A. TIMES, July 10, 1996, at
A3.
296
Andrew D. Blechman, Area Lawmaker Rejects Same-Sex Marriages but Backs
Partnership Role, L.A. TIMES, July 10, 1996, at C4.
297
Id.
298
See Carl Ingram, Davis Breaks Tie, Backs Domestic Partner Registry, L.A.
TIMES, at B8.
299
AB 26 (1999). In 1995 and 1997, domestic partnership bills failed to emerge
from the assembly. By the time the state enacted a domestic partnership law, twelve
California cities had their own domestic partnership ordinances. See Carl Ingram, Senate
OKs Benefits for Same-Sex Partners, L.A. TIMES, May 26, 1999, at A3.
300
AB 26, §§ 3-4.
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assembly, attempted to include both same-sex and different-sex couples. 301 At
the time, advocates had not reached consensus on whether domestic partnership
would be built to replicate marriage for same-sex couples or whether it would
remain an alternative open to everyone. 302
Once Governor Gray Davis weighed in, however, the path toward domestic
partnership as an end in itself – an alternative open to all – became much less
likely. Davis expressed his resistance to a bill that included different-sex
couples because such inclusion threatened to minimize the importance of
marriage by providing a nonmarital choice to those who could otherwise
marry. 303 His position was especially striking in light of his tiebreaking vote on
AB 2810 304 and his earlier support, as a gubernatorial candidate, for an inclusive
domestic partnership bill. 305 Now, for Davis and the political constituencies he
looked to satisfy, same-sex couples’ lack of access to marriage distinguished
them from other unmarried couples and mediated the relationship between
domestic partnership and marriage. His press secretary declared: “For
everybody else, there’s another process and it’s called marriage.” 306 While
inclusion of same-sex couples did not threaten marriage since those couples
could not marry, inclusion of different-sex couples detracted from marriage’s
channeling function.
Ultimately, Midgen and Davis reached a compromise: In addition to samesex couples, the bill would include only different-sex couples in which both
members were over 62. 307 Accordingly, the final version included the same
definition from AB 2810 (the 1994 bill) – “two adults who have chosen to share
one another’s lives in an intimate and committed relationship of mutual caring” –
but added the age restriction for different-sex couples. 308 Since older couples
often lacked meaningful access to marriage, as the earlier task forces had
documented, their inclusion shored up the idea of domestic partnership as open
to those for whom marriage was not a realistic choice. And it added a
sympathetic constituency to the legislation. 309
301
Senator Kevin Murray’s competing bill also included same-sex and different-sex
couples. See Mark Gladstone, Davis Likely to Sign Domestic Partners Bill, L.A. TIMES,
Sept. 3, 1999, at A3.
302
See Cummings & NeJaime, supra note 19, at 1258.
303
See id. at 1259.
304
Carl Ingram, Davis Breaks Tie, Backs Domestic Partner Registry, L.A. TIMES,
Aug. 20, 1996, at B8.
305
See Candidate Survey on Family Diversity, Domestic Partnership, and Marital
Status Discrimination 2 (1998) (on file with author).
306
Martin Wisckol, Partner Benefit Limited to Gays, ORANGE COUNTY REG., Sept.
7, 1999, at B1.
307
Id. Midgen’s chief of staff explained that even though Midgen wanted an
inclusive law, “these were things that the governor asked that she change, and she’s just
trying to be practical and get something that he will sign.” Id. In 2001, lawmakers
included different-sex couples with one partner over 62. AB 25, § 3 (2001).
308
AB 26, § 2.
309
See Cummings & NeJaime, supra note 19, at 1259.
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At the same time that lawmakers enacted a limited domestic partnership
regime, a campaign to pass a voter initiative prohibiting the recognition of samesex couples’ marriages was gaining steam. The Proposition 22 campaign grew
out of then-Senator Knight’s failed attempts to legislate a marriage
prohibition. 310 The new domestic partnership law lent the effort a greater sense
of urgency. Even as the campaign claimed that Proposition 22 would not affect
domestic partnership rights, initiative supporters complained that domestic
partnership represented a backdoor route to altering marriage. 311 And Senator
Knight and other conservative Republican lawmakers charged that the domestic
partnership law would both weaken the institution of marriage and pave the way
for same-sex marriage. 312
The decade that followed witnessed two successful voter initiatives
prohibiting marriage for same-sex couples – Proposition 22 in 2000 and
Proposition 8, the constitutional amendment at issue in Perry, in 2008. 313
Throughout that time, legislators continued to expand domestic partnership,
ultimately providing all of the state-law rights and benefits of marriage. 314
Countermovement actors unsuccessfully challenged the domestic partnership
regime as marriage by another name. 315 The formulation of domestic partnership
as second-class status for same-sex couples became firmly entrenched as LGBT
advocates and their allies pushed for marriage while their opponents wielded
domestic partnership as a substitute to satisfy constitutional requirements. That
battle continues to this day as the Supreme Court prepares to weigh in.
III. UNDERSTANDING MARRIAGE, NONMARRIAGE, AND LGBT ADVOCACY
This Part explores how my empirical and historical challenge to the
conventional account of LGBT activism informs the normative debate over
marriage and LGBT advocacy. Marriage shaped and constrained work toward
nonmarital recognition and, conversely, work on nonmarital recognition
participated in the shaping of marriage and the married/unmarried distinction.
On one hand, then, the California case study casts doubt on the historical
underpinnings of marriage critique; and by suggesting the difficulty in getting
out from under the legal and cultural weight of marriage, it complicates the
normative and prescriptive claims animated by such critique. It. Yet, on the
other hand, the case study brings to light previously unacknowledged LGBT
contributions to marriage itself and the line between marriage and nonmarriage.
310
See id. at 1260.
See Amy Pyle, State Begins Accepting Gays’ Domestic Partner Sign-Ups, L.A.
TIMES, Jan. 4, 2000, A1.
312
Carl Ingram, Senate OKs Benefits for Same-Sex Partners, L.A. TIMES, May 26,
1999, at A1.
313
See Cummings & NeJaime, supra note 19, at 1257-96..
314
2003 Cal. Legis. Serv. 2586-2595, 2588 (West) (codified at CAL. FAM. CODE §
297.5 (West 2010); AB 2216 (2002); AB 25, § 3 (2001).
315
Knight v. Superior Court, 26 Cal. Rptr. 3d 687 (Cal. Ct. App. 2005).
311
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In doing so, it suggests that marriage constitutes a dynamic and promising site
for familial and sexual progress.
A. Reconsidering the Case Against Marriage
1. The Case Against Marriage (Equality Advocacy)
As part of a broader critique of marriage, scholars working in the fields of
family law and sexuality have leveled powerful critiques of the LGBT
movement’s marriage equality campaign. 316 LGBT advocates, they claim,
legitimate the state’s use of marriage in extending rights and benefits. 317 By
demanding marriage instead of functional family policy, advocates disclaim
other families that exist outside of marriage. 318 Furthermore, by presenting
marriage as the family policy solution to the dilemmas that lesbians and gay men
confront, advocates affirm the neoliberal trend to privatize caretaking
responsibilities. 319
This family-centered critique relates closely to a sexuality-based critique,
which maintains that affirming marriage as the privileged site for intimate
relationships marginalizes non-normative sexuality and pushes lesbian and gay
relationships into the confines of heterosexual institutions. 320 Cast in
316
The general critique of marriage is compelling. A legal system that uses
marriage to distribute rights and benefits leaves unsupported a growing number of
dependency relationships that exist outside marriage. See POLIKOFF, supra note 21, at
123-29. And privileging sexual affiliations that meet the coupled, exclusive, committed
norms of marriage limits the space for nonnormative relationships. See Murray, supra
note 8, at 59-62. Yet rather than explore the general arguments on which marriage
critique is based and the positive contributions achieved by marriage critics, I focus on
how scholars recently have channeled their arguments through a critique of LGBT
advocacy.
317
See Polikoff, supra note 8, at 203. See also Nancy D. Polikoff, We Will Get
What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the
Legal Structure of Gender in Every Marriage”, 79 VA. L. REV. 1535, 1549 (1994);
Ruthann Robson, Assimilation, Marriage, and Lesbian Liberation, 75 TEMPLE L. REV.
709, 777 (2002).
318
See POLIKOFF, supra note 21, at 107. See also Murray, supra note 15, at 433
(arguing that the claim that children are harmed by the denial of marriage to same-sex
couples “marginalizes attempts to render legible as ‘families’ kinship structures that
depart from the nuclear marital family”); Franke, supra note 10, at 242 (arguing that
advocates portray “the non-married parent . . . as a site of pathology, stigma, and injury to
children”).
319
See Murray, supra note 15, at 433; Harris, supra note 32, at 1557-58. See also
DEAN SPADE, NORMAL LIFE 60-61 (2011); Janet Halley, Recognition, Rights, Regulation,
Normalisation, in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS 97, 110-11 (Robert
Wintemute & Mads Andenaes eds., 2001).
320
See, e.g., Teemu Ruskola, Gay Rights vs. Queer Theory: What is Left After
Lawrence v. Texas, 23 SOC. TEXT 235, 245 (2005); Katherine M. Franke, The
Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1414 (2004).
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assimilationist terms, lesbians and gay men gain recognition to the extent they
are “like straights.” 321
Armed with these powerful critiques, scholars offer a variety of normative
frameworks that would abolish, reposition, or significantly minimize marriage in
legal regimes governing family and sexuality. For example, Polikoff’s “valuing
all families” approach replaces marriage with a “civil partnership” system with
varying rules for different types of families, distinguishing those with children
from those without. 322 Her approach also seeks to supplant marriage as the
legally salient dividing line and instead connect the specific purpose of a law to
the relationships the law covers. 323
These normative interventions yield prescriptive claims urging LGBT
advocates to turn away from marriage as the remedy to the lack of same-sex
relationship recognition. Polikoff encourages advocates to work toward
solutions that help a variety of family relationships rather than promote legal
rules that reward marriage. 324 Similarly, Katherine Franke argues that “efforts to
secure marriage equality for same-sex couples must be undertaken, at a
minimum, in a way that is compatible with efforts to dislodge marriage from its
normatively superior status as compared with other forms of human attachment,
commitment, and desire.” 325
To support these normative and prescriptive claims, scholars invoke the
conventional account of LGBT legal advocacy detailed in Part I, drawing a sharp
distinction between the earlier, pre-Baehr era of LGBT organizing, which
purportedly worked against marriage, and the present state of organizing, which
works toward marriage. They introduce a predictive dimension, suggesting that
had LGBT advocates – after Baehr – remained committed to the earlier vision
that animated their work, the current landscape would look drastically different.
For these marriage skeptics, the story of post-Baehr organizing is one of missed
opportunities.
In this view, domestic partnership represented a significant opportunity to
create true alternatives to marriage. But rather than dedicate themselves to
cultivating domestic partnership and other nonmarital regimes, advocates in a
321
See Shannon Gilreath, Rebuttal, Arguing Against Arguing for Marriage, 159 U.
PA. L. REV. PENNUMBRA 21, 30 (2010); Marc Spindelman, Homosexuality’s Horizon, 54
EMORY L.J. 1361, 1374 (2005); Ruskola, supra note 320, at 243. Marriage, through this
lens, is a state mode of sexual discipline, which LGBT advocates invite into the lives of
their constituents. See Melissa Murray, Strange Bedfellows: Criminal Law, Family Law,
and the Legal Construction of Intimate Life, 94 IOWA L. REV. 1253, 1301 (2009). Rather
than pinpoint marriage, Franke lodges a broader critique against the politics of
recognition. See Franke, supra note 10, at 245. See also Judith Butler, Is Kinship Always
Already Heterosexual?, in LEFT LEGALISM/LEFT CRITIQUE 229 (Wendy Brown & Janet
Halley, eds. 2002).
322
See POLIKOFF, supra note 21, at 132-33.
323
See id. at 126.
324
See POLIKOFF, supra note 21, at 210-14.
325
Franke, supra note 21, at 2686.
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post-Baehr world denigrated such alternatives as second-class designations. 326
For instance, in 2006, in the wake of stinging marriage defeats, historian John
D’Emilio contemplated what could have been:
Had we tried to devise a strategy that took advantage of the force
of historical trends, we would, as a movement, have been
pushing to further de-center and de-institutionalize marriage.
Once upon a time, we did. In the 1980’s and early 1990’s,
imaginative queer activists invented such things as ‘domestic
partnership’ and ‘second-parent adoption’ as ways of
recognizing the plethora of family arrangements that exist
throughout the United States. 327
For these marriage skeptics, marriage equality advocacy that developed
throughout the 1990s and 2000s “represents at best backpedaling from, and at
worst abandonment of, a vision of family pluralism that once imbued advocacy
for gay and lesbian families.” 328 LGBT families were, Kaaryn Gustafson argues,
“perfectly situated to fight for the recognition of all families rather than the mere
recognition of marriage.” 329 Yet “much of the LGBT rights movement has been
focused on marriage in the last few years, reinforcing rather than re-envisioning
notions of family.” 330 “[T]he larger goals that have typically characterized
LGBT organizing” have receded. 331
Through this lens, the LGBT shift from nonmarital to marital work was not
simply a strategic, but rather a stark normative shift. As Michael Warner sees it,
“the crucial founding insights behind several decades’ worth of gay and lesbian
politics are now being forgotten.” 332 Warner’s summation captures the
connection between the historical account and its normative implications:
“Marriage became the dominant issue in lesbian and gay politics in the 1990s,
but not before. If marriage is so fundamental to a program of rights, why did gay
men and lesbians resist it over the twenty-five year period of their most defiant
activism?” 333 Warner, of course, is suggesting that marriage can and should be
detached from an LGBT rights project and that LGBT advocacy before Baehr
provides useful guidance.
326
See Jeffrey A. Redding, Dignity, Legal Pluralism, and Same-Sex Marriage, 75
BROOKLYN L. REV. 791, 835, 839 (2010); Paula L. Ettelbrick, Avoiding a Collision
Course in Lesbian and Gay Family Advocacy, 17 N.Y. L. SCH. J. HUM. RTS. 753, 761
(2000).
327
John D’Emilio, The Marriage Fight is Setting Us Back, 13 GAY & LESBIAN REV.
10 (2006).
328
Nancy D. Polikoff, For the Sake of All Children: Opponents and Supporters of
Same-Sex Marriage Both Miss the Mark, 8 N.Y. CTY. L. REV. 573, 585-86 (2005).
329
Kaaryn Gustafson, Breaking Vows: Marriage Promotion, the New Patriarchy,
and the Retreat from Egalitarianism, 5 STAN. J. C.R. & C.L. 269, 300 (2009).
330
Id.
331
Id. at 301.
332
WARNER, supra note 21, at 91.
333
Id. at 87.
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In this way, the historical narrative and its predictive dimensions bolster
prescriptive claims resisting the prioritization of marriage in LGBT organizing
and support normative models in which marriage is relabeled, drastically
minimized, or simply abolished. 334 For instance, in 2006, a number of scholars,
including D’Emilio, Polikoff, and Franke, signed a joint statement, Beyond
Same-Sex Marriage, pushing advocates to focus less on marriage and more on
family diversity. Encouraging activists to reclaim their roots, the signatories
argued that their position “follows in the best tradition of the progressive LGBT
movement, which invented alternative legal statuses such as domestic
partnership and reciprocal beneficiary.” 335 And today, in arguing for
“relationship recognition pluralism,” Murray cites early domestic partnership
efforts in California as a model for future work. 336
In the end, scholars critical of the marriage equality campaign wonder how
a movement rooted in sexual liberation and determined to protect the “families
we choose” 337 became a movement that chose marriage. 338 As Katherine Franke
asks, “How did we get to this curious place, a place with a politics that would be
almost unimaginable to the sexual freedom fighters of Stonewall?” 339 The
California case study provides some answers, both by challenging the premises
of the conventional historical account and revealing the more dynamic
relationship between marriage and nonmarriage.
2. Lessons from California
The California case study shows that as an empirical matter, the
conventional historical account is incomplete, oversimplifying the contested
nature of marriage in earlier organizing and obscuring the complicated
interaction between domestic partnership and marriage. In contrast, the case
study reveals the constraints that marriage imposed on activists and the powerful
activist element that welcomed (a reshaped version of) marriage into lesbian and
gay life.
First, the case study exposes the regulatory reach and legal and cultural pull
of marriage. Even for activists resisting marriage, marriage functioned like a
riptide. Advocates were swimming with and against marriage, often at the same
time. That is, they challenged marriage’s role even as they submitted to its pull.
Advocates’ claims did not simply succeed or fail on their own, but were met with
reactions from a range of relevant actors who shaped the content and influenced
334
335
See, e.g., POLIKOFF, supra note 21, at 132; Franke, supra note 21, at 2686.
Beyond Same-Sex Marriage: A New Strategic Vision, Executive Summary 2
(2006).
336
Murray, supra note 12, at *6.
See Kath Weston, Families in Queer States: The Rule of Law and the Politics of
Recognition, 93 RADICAL HIST. REV. 122 (2005).
338
See Katherine M. Franke, The Politics of Same-Sex Marriage Politics, 15
COLUM. J. L. & GENDER 236, 239 (2006). See also SHANNON GILREATH, THE END OF
STRAIGHT SUPREMACY xi (2011); Polikoff, supra note 14, at 544.
339
Franke, supra note 11, at 157.
337
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the viability of those claims. 340 Both supportive and hostile responses filtered
LGBT claims through the lens of marriage, and such responses often redirected
advocates’ energy and constrained potentially more transformative visions. 341
With marriage as the dominant legal and cultural framework, nonmarital
recognition was constructed in the shadow of marriage. Marriage rendered
intimate couples the appropriate targets of reform. Those who mapped onto a
particular notion of the marital family gained support by distinguishing
themselves from other relationships that failed to fit the marital mold.
Furthermore, marriage distinguished same-sex unmarried couples from their
different-sex counterparts, producing a focus on marriage access over marriage
choice in ways that gradually propped up marriage as an LGBT movement goal.
Indeed, supportive allies frequently cast domestic partnership as a compromise
solution that avoided the more radical possibility of same-sex marriage.
Accordingly, the power of marriage as a legal and cultural norm structured
claims, debates, and outcomes regarding family reform such that advocates did
not – and could not – simply reject marriage. Ultimately, the case study
demonstrates how difficult it is to counteract the normative and regulatory force
of marriage. 342
Of course, advocates did not simply accommodate marriage’s power
because of forces outside the movement. Rather, they acted on behalf of LGBT
constituents who valued marriage. 343 Many lesbians and gay men enacted
marriage in their legally unrecognized relationships and imposed the symbolic
elements of marriage onto domestic partnership. Moreover, same-sex couples
often experienced their exclusion from marriage not simply as a family-based
harm but as an affront to sexual-orientation equality. For them, marriage was
part of the solution, not part of the problem.
Furthermore, many LGBT advocates themselves envisioned a state marriage
regime that included same-sex couples. As they sought to make marriage less
important to the distribution of rights and benefits, they also contested same-sex
couples’ exclusion from marriage, often indirectly, and situated marriage as a
status that should ultimately include lesbians and gay men. For instance, when
Achtenberg represented Hinman in his attempt to secure dental benefits for his
same-sex partner, she avoided a direct challenge to California’s marriage law;
this, at the time, was a wise strategic decision. Yet she highlighted Hinman’s
340
See Douglas NeJaime, Constitutional Change, Courts, and Social Movements,
111 MICH. L. REV. *34 (forthcoming 2013).
341
See William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and
Public Law, 150 U. PA. L. REV. 419, 487 (2001).
342
Ariela Dubler demonstrates a similar dynamic in the context of single women in
the 19th and early 20th centuries, underscoring the repeated difficulties in escaping the
legal and cultural weight of marriage. See Ariela R. Dubler, “Exceptions to the General
Rule”: Unmarried Women and the “Constitution of the Family”, 4 THEORETICAL INQ. L.
797, 809 (2003). And she explores the contemporary implications of her historical
analysis. See Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100
COLUM. L. REV. 957, 1017 (2000).
343
See Schacter, supra note 6, at 394.
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desire for marriage and differentiated unmarried different-sex couples in ways
that situated marriage as a goal of LGBT advocacy. While her arguments
reflected important strategic decisions, they also evinced normative dimensions
of marriage that depart from the account of marriage resistance in the dominant
narrative of LGBT advocacy. Indeed, even Coleman, one of the most forceful
critics of a regime organized around marriage, sought marriage in his own
relationship and viewed marriage as a status that should include same-sex
couples.
Accordingly, the California case study suggests that, in some ways,
marriage critics overestimate both the agency of LGBT advocates and the
pervasiveness of radical sexual politics. They associate advocates with a
relatively one-sided view of marriage that accounts for neither the strategic
constraints facing advocates nor the varied normative preferences of both
advocates and constituents. Marriage critics’ theoretical contributions shed
important light on the limitations of marriage. Yet in seeking to translate those
insights into on-the-ground legal reform and advocacy models, they minimize
important constraints and simplify the complicated stakes in marriage-related
work.
B. Understanding the Case for Marriage
Marriage critics underestimate LGBT advocates’ impact on marriage itself
– and its role in organizing familial and sexual relationships. Marriage did not
merely cast a shadow over nonmarital recognition. 344 Rather, the California case
study shows how the construction of nonmarital spaces impacts the changing
contours and meaning of marriage. In the space outside marriage, LGBT
advocates produced a marital model capable of including same-sex couples, who
now appeared marriage-like.
An emerging body of legal scholarship reveals the dialogical and active
relationship between marriage and nonmarriage, resisting the conventional
assumption that marriage simply defines nonmarriage in a one-way direction. 345
Ariela Dubler’s study of widows’ rights in the late nineteenth and early twentieth
centuries demonstrates that “[t]he legal regulation of unmarried women . . . has
played a constitutive and contested role in legal constructions of the meaning of
marriage.” 346 In other work on single women’s claims in the nineteenth century,
Dubler shows that beyond marriage’s “formal reach,” “judges and lawmakers
forged the meaning of marriage itself.” 347 Of course, in the period Dubler
344
See Franke, supra note 21, at 2697 (“those who fall within marriage’s shadow
find themselves locked into a social field in which the attachments we take up have
meaning already determined by the state.”).
345
See Courtney Megan Cahill, Regulating at the Margins: Non-Traditional Kinship
and the Legal Regulation of Intimate and Family Life, 54 ARIZ. L. REV. 43, 47 (2012);
Dubler, Wifely Behavior, supra note 342, at 961.
346
Ariela R. Dubler, In the Shadow of Marriage: Single Women and the Legal
Construction of the Family and the State, 112 YALE L.J. 1641, 1646 (2003).
347
Dubler, “Exceptions to the General Rule”, supra note 342, at 800.
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analyzes, nonmarital regulation participated in the construction of marriage a
highly gendered institution, 348 unlike the contemporary model shaped by LGBT
nonmarital advocacy. Indeed, this contrast underscores the dynamic nature of
marriage and its construction in nonmarital spaces. 349 Applying this perspective
to more contemporary claims, Courtney Cahill exposes how “central forms of
intimacy and family,” including marriage and parenting, “so often take shape in
the shadow of their marginal counterparts.” 350
This California case study injects a social-movement perspective, showing
that not simply the state, but advocates themselves and constituents at the
grassroots shape the content of marriage in the spaces outside its borders.
Indeed, movement actors attempted to change marriage from the outside in order
to stake claim to the inside. While some movement actors surely sought to
construct nonmarriage so as to elude marriage, others actively deployed
nonmarriage to build the case for a reshaped version of marriage. When
understood in these terms, it becomes clear that in important ways the earlier era
of nonmarital advocacy laid the groundwork for, rather than contradicted, the
current era of marriage equality advocacy.
When the modern LGBT movement emerged in Stonewall’s wake,
significant external forces were dramatically reshaping norms around family and
sexuality. 351 LGBT advocacy can be seen as joining and seizing on these other
forces. 352 Throughout this time, marriage grew to reflect important demographic
shifts and internalized legal changes wrought by advocates for a variety of social
movements, including the LGBT movement. 353
As the California case study reveals, same-sex couples became appropriate
subjects of recognition to the extent they resembled – and fulfilled the same
functions as – married couples. If same-sex couples deserved recognition
because they functioned like married couples, the specific ways in which they
did – providing a vehicle for romantic affiliation, mutual support, and economic
interdependence – became important to both LGBT identity and the very
348
Id. at 809.
See Dubler, Wifely Behavior, supra note 342, at 1019.
350
Cahill, supra note 345, at 52. Indeed, the space outside marriage may tell us
more than the law of marriage itself. As Mary Anne Case argues, the functional definition
that nonmarital recognition requires of unmarried couples is not mandated in marriage.
See Marry Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1774 (2005).
Therefore, even as popular understandings of marriage may have become more
functional, marriage itself requires none of the indicia of functionality explicitly covered
in nonmarital schemes. This does not mean, however, that marriage is a space of
unbounded freedom. Even when the law takes what Case terms a “thin” view of
marriage, see id. at 1205 (“a thin view of civil marriage makes it a legal shell that couples
can fill with their own normative meaning and internal structure”), the law of nonmarriage
may powerfully communicate a “thick” view of marriage.
351
See discussion supra Part II.A.
352
Cf. Cherlin, supra note 110, at 851.
353
See generally Jeremiah Egger, Note, Glucksberg, Lawrence, and the Decline of
Loving’s Marriage Precedent, 98 VA. L. REV. 1825 (2012).
349
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definition of marriage. In casting same-sex couples as marriage-like for the
purpose of securing relationship rights, LGBT advocates ultimately constructed
same-sex couples as marriage-worthy and marriage itself as LGBT-inclusive.
Contemporary marriage equality jurisprudence bears this out. When in
2003 the Massachusetts Supreme Judicial Court in Goodridge v. Department of
Public Health declared that “it is the exclusive and permanent commitment of
the marriage partners to one another, not the begetting of children, that is the
sine qua non of civil marriage,” 354 its conceptualization grew out of both the
mapping of LGBT identity onto marital norms and broader changes in marriage
itself. The notion of marriage rooted in gender complementarity, procreative
sex, and biological parenting – a notion that justified lesbian and gay exclusion –
no longer resonated. 355
In California, the state supreme court adopted a notion of marriage that
resonated with years of LGBT advocacy seeking nonmarital recognition. It
explained in its 2008 Marriage Cases decision that “gay individuals are fully
capable of entering into the kind of loving and enduring committed relationships
that may serve as the foundation of a family and of responsibly caring for and
raising children.” 356 Adult coupling and chosen families, rather than biological
reproduction and dual-gender parenting, had come to constitute not only the
basis for nonmarital status but also for marriage itself. 357
More specifically, the relationship between the emotional and economic
elements of marriage – a key move in nonmarital recognition – has assumed a
central role in marriage jurisprudence. In finding Proposition 8 unconstitutional,
the district court in Perry declared:
Marriage is the state recognition and approval of a couple’s
choice to live with each other, to remain committed to one
another and to form a household based on their own feelings
about one another and to join in an economic partnership and
support one another and any dependents. 358
Indeed, in striking down Proposition 8 on narrower grounds, the Ninth Circuit
explained in Perry that “because we acknowledge the financial interdependence
of those who have entered into an ‘enduring’ relationship,” “[w]e allow spouses
but not siblings or roommates to file taxes jointly.” 359 When forced to articulate
the attributes of marriage, the Perry courts named qualities – emotional
commitment and economic support – that had come to explicitly define domestic
partnership and linked those qualities as mutually constitutive.
Not only do the arguments through which advocates achieved nonmarital
recognition support their arguments for marriage, but the nonmarital recognition
354
798 N.E.2d at 941, 961 (Mass. 2003).
See Eskridge, supra note 22, at 1885.
356
In re Marriage Cases, 183 P.3d 384, 420, 428 (Cal. 2008).
357
See Hunter, supra note 91, at 1856; David B. Cruz, Heterosexual Reproductive
Imperatives, 56 EMORY L.J. 1157, 1167-68 (2007).
358
Perry, 704 F. Supp. 2d at 961.
359
Perry v. Brown, 671 F.3d 1052, 1078 (9th Cir. 2012).
355
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regime divests the marriage law of rationales previously understood to justify the
exclusion of same-sex couples. By extending rights to same-sex couples because
they act like married couples, domestic partnership exposes marriage’s raw
sexual-orientation-based distinction and dislodged justifications for that
distinction. 360 And because California treats same-sex couples like married
couples for purposes of parent-child relationships, including parental
presumptions for children born into domestic partnerships, justifications based
on procreation and childrearing appear inconsistent with actual governmental
policy. 361 Combined with California court decisions recognizing the parental
rights of lesbian and gay parents, 362 rationales that once supported the differentsex requirement in marriage disappear precisely through work around nonmarital
relationships.
Indeed, the legal separation of parenting and marriage, which grew out of
trends in heterosexual family formation but was seized on by LGBT advocates,
has become a key factor in favor of marriage equality. As the Ninth Circuit
reasoned in striking down Proposition 8, California’s “laws governing parenting,
which are distinct from its laws governing marriage” – remember California’s
1975 Uniform Parentage Act – provide rights and responsibilities to nonmarital
parents in ways that erase distinctions based on marital status and thereby erode
the rationale formerly used to justify marriage’s exclusive nature. 363 Similarly,
California’s favorable treatment of nonbiological parents – a development
stemming from issues in reproductive technology and protection of
nonbiological, unmarried fathers’ rights but furthered by LGBT advocates
protecting the rights of nonbiological co-parents – weakened the biologicalparenthood rationale for the marriage restriction. 364 Indeed, the Ninth Circuit
explained that “in California, the parentage statutes place a premium on the
‘social relationship,’ not the ‘biological relationship,’ between a parent and a
child.” 365
Even if parenting was no longer exclusively linked to marriage and biology,
the proponents of laws restricting marriage for same-sex couples argue that such
laws support an optimal childrearing environment – married, biological parents
of each sex. 366 In rejecting the link between marriage and dual-gender
childrearing, courts not only rely on the parental rights of unmarried parents,
including those in same-sex relationships, but also on the erosion of sex
360
See In re Marriage Cases, 183 P.3d at 435. See also NeJaime, supra note 45, at
724.
361
See Perry, 671 F.3d at 1086; In re Marriage Cases, 183 P.3d at 452 n.72.
See, e.g., K.M. v. E.G., 117 P.3d 673 (Cal. 2005); Elisa B. v. Superior Court,
117 P.3d 660 (Cal. 2005).
363
Perry, 671 F.3d at 1086.
364
See id. at 1087. Polikoff’s work on the rights of lesbian mothers constitutes an
important component of this work. For an insightful analysis of legal changes around
LGBT parenting, see CARLOS A. BALL, THE RIGHT TO BE PARENTS (2012).
365
Perry, 671 F.3d at 1087.
366
See Defendant-Intervenors-Appellants’ Opening Brief at 77-81, Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) (No. 10-16696).
362
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stereotypes inside marriage – a shift pushed by women’s rights advocates and
seized on and advanced by LGBT advocates. As the Goodridge court explained,
the argument based on dual-gender childrearing “hews perilously close to the
argument, long repudiated by the Legislature and the courts, that men and
women are so innately and fundamentally different that their respective ‘proper
spheres’ can be rigidly and universally delineated.” 367 Indeed, the Perry district
court connected the legacy of sex-differentiated roles in marriage and the family
to the prohibition on marriage for same-sex couples. 368 Rejection of the former
supported rejection of the latter.
Seen in these terms, the fight over the very definition of marriage – and the
impact of LGBT nonmarital advocacy on that fight – reveals itself. Whereas
social-conservative activists and commentators opposed to same-sex marriage
fault LGBT advocates for “redefining” marriage, even those supporting marriage
equality recognize the definitional stakes. In casting its decision as “a significant
change in the definition of marriage,” 369 the Goodridge court framed marriage as
“an evolving paradigm” 370 and acknowledged the extent to which its view of
marriage diverged from an earlier model rooted in procreation and gender
complementarity. Yet this is not simply the product of LGBT work, either inside
or outside marriage. Rather, this definitional fight can be situated in broader
changes in family demographics and legal norms occurring over the latter part of
the twentieth century and in mobilizations around gender, race, and sexual
liberty. Within that broader context, the changing shape of marriage can be
located within an earlier era of LGBT organizing, in which advocates mapped
lesbian and gay families onto ascendant marital norms in order to gain
nonmarital support. By working in the space outside marriage, LGBT advocates
contributed to the attributes that would come to define marriage for everyone.
CONCLUSION
Perry and Windsor may provide the culmination of years of marriage
equality advocacy. If same-sex couples gain entrance into marriage at the
federal level and in all fifty states, then what? Exploring and understanding
from where we have come is essential to appreciating and comprehending both
where we stand and how we move forward. The empirical and historical insights
that emerge from the California case study suggest the benefits of recalibrating
the normative debate over marriage in ways that attend to the changing nature of
marriage itself. The model of marriage which LGBT advocates helped produce
– and to which they now lay claim – ultimately may serve some of marriage’s
chief skeptics. 371
367
Id. at 965 n.28.
Perry, 704 F. Supp. 2d at 975, 992-93.
369
798 N.E.2d at 965.
370
798 N.E.2d at 967.
371
See Suzanne A. Kim, Skeptical Marriage Equality, 34 HARV. J. L. & GENDER 37,
61 (2011); Edward Stein, Marriage or Liberation?: Reflections on Two Strategies in the
368
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Same-sex couples’ participation in marriage may continue to direct the
meaning of marriage away from one rooted in procreation and reproduction and
toward one rooted in adult romantic affiliation and mutual emotional and
economic support. 372 The delinking of marital sex and reproduction may further
complicate social and legal understandings of parenthood. 373 And the entrance
of same-sex couples into marriage on terms explicitly used to construct
nonmarital recognition may, instead of confirming the legal and cultural
superiority of marriage, make marriage matter less. 374
This is not to suggest that a world in which same-sex couples marry
inevitably pushes us in progressive directions. But at a minimum, 1980s LGBT
advocacy and its clear impact on today’s marriage claims shows that the shifting
shape of marriage may integrate and advance, rather than simply reject and stunt,
changes in family and sexuality.
Struggle for Lesbian and Gay Rights and Relationship Recognition, 61 RUTGERS L. REV.
567, 592 (2009).
372
See Eskridge, supra note 22, at 1898. See also Ettelbrick, supra note 326, at
760.
373
See BALL, supra note 369, at 131.
374
See Cherlin, supra note 110, at 858.