Marriage for Same-Sex Couples: A Conversation

With public opinion increasingly favoring the right of same-sex couples to marry, and more states legalizing marriage for gays and lesbians, the movement for marriage equality appears to be at a tipping point. Four legal scholars discuss the future of marriage equality in the United States and examine the larger issues that remain on the horizon. 

Winter 2010

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2009 has been a landmark year for marriage equality advocates. In April, Iowa legalized marriage for same-sex couples. Vermont and New Hampshire soon followed suit, as did Maine—if only to have residents vote to repeal the right in November. The news did not stop there. In the same month, a narrow majority in Washington chose to grant same-sex couples the state-sanctioned benefits of marriage, but not the title.

These developments, along with a host of individual triumphs and setbacks, sparked intense debates that echoed through the halls of Columbia Law School. Discussions were particularly pointed within the Center for Gender and Sexuality Law, which offers the only curriculum of its kind at any law school in the country.

Taking note of the variety of well-reasoned arguments, Columbia Law School Magazine approached four professors of varying backgrounds with an idea: They would document their thoughts on marriage for same-sex couples in a series of back-and-forth emails—no moderator, no referee. The scholars could drive the free-flowing conversation in any direction and expand on any thoughts that they found particularly compelling.

In addition to Professors Suzanne B. Goldberg and Katherine M. Franke, the directors of the Center for Gender and Sexuality Law, the Magazine invited constitutional law and public opinion expert Nathaniel Persily to join the conversation, as well as Professor Elizabeth F. Emens, a noted scholar on discrimination and marriage. Each approached the issue with a unique perspective shaped by their legal expertise and differing experiences. Together, they discussed the future of marriage for same-sex couples in America. An edited version of the conversation follows.

 

Katherine Franke: Some have argued that marriage rights for lesbian and gay couples is the preeminent civil rights issue of this era. A long shot even five years ago (and a productive wedge issue for the Republicans in the 2004 presidential election), we’ve seen the tide turn in the last couple years such that the injustice of the issue has become more apparent to a larger section of the American people. To be honest, I didn’t see it coming quite so quickly. Did any of you?

Nathaniel Persily: The rapid and radical shifts in attitudes toward same-sex marriage since 2003 may possibly be unprecedented among so-called “moral values” issues that deal with family, sexuality, or intimacy. Let me begin by discussing the state of American public opinion on same-sex marriage. If present trends continue—and that is not a big “if”—a majority of Americans within five years will support the right of gays and lesbians to marry.

In the wake of Lawrence v. Texas (2003) and the Massachusetts court’s decisions legalizing same-sex marriage in that state, the public did indeed backlash on both gay rights generally and marriage in particular. Since that time, however, the issue has become fully “ideologized,” meaning that self-described liberals have largely moved strongly in the direction of marriage equality.

Suzanne Goldberg:
We can also see a trend in the conversation—both in public and in court—that now takes seriously the question whether same-sex couples should be able to marry. Twenty years ago, when same-sex couples first brought their marriage equality claims to court, they were essentially laughed off, dismissed based on the dictionary’s definition of marriage as a relationship between a man and a woman. Now, same-sex couples have begun to win their right to marry—both in legislatures and courts, including the unanimous ruling of the Iowa Supreme Court
last spring.

In addition, more and more people recognize that, whatever their views about
the word “marriage,” there is something unfair, even distasteful, about laws that privilege heterosexual couples while treating their gay neighbors as legal strangers
to one another.

Nathaniel Persily: Most of the present attitudinal change is now being driven by cohort replacement—that is, older folks with more conservative views on gay rights dying off and younger people, a majority of whom already support marriage equality, taking their place.

Katherine Franke: Nate’s observation about cohort replacement is intriguing. I wonder if there isn’t something similar going on in the lesbian and gay community that I regard as somewhat more troubling.

Over the last several years, marriage rights have become the most prominent issue in the struggle for lesbian and gay equality and freedom, eclipsing a broader kind of politics that was more prominent in the community 10, 15, or 20 years ago. This year marked the 40th anniversary of the Stonewall riots, an event that sparked a movement calling for a broad range of sexual rights and liberties that were in so many ways much more radical than today’s gay rights and marriage rights politics. ACT UP [the AIDS Coalition to Unleash Power] deployed tactics and strategies in the late 1980s and 1990s that were designed to bring aid and attention to the AIDS epidemic by upending the medical establishment.

These “in your face” forms of politics find little relation to today’s couples lining up at city halls across the country asking for the state’s blessing. Today’s younger cohort of lesbian and gay people have few contemporary examples of what the sexual rights movement once was.

Nathaniel Persily: Katherine is right about the attitudinal patterns among gays and lesbians: Priorities vary considerably by age. Patrick Egan and Kenneth Sherrill have done the most extensive analysis of public attitudes of gays, lesbians, and bisexuals. They find, for example, that gays, lesbians, and bisexuals of all age groups place protections against workplace discrimination and anti-hate crimes legislation above marriage. But for the youngest respondents (ages 18 to 25), marriage comes third in their list of priorities—whereas for those over the age of 45, it does not make the top five.

Suzanne Goldberg: But I would have to disagree, somewhat, with Katherine’s characterization of marriage as the issue for up-and-coming activists, and Nate’s data likewise confirms that marriage, though important, is not the sole, or even the top, priority for many LGBT people today. It is no doubt true that many are embracing marriage as one of the important civil rights issues of the moment—perhaps with good reason, in that it is one of the few areas in which inequality is written formally into law. But at the same time, we have seen tremendous attention to the pervasive violence that continues against lesbians, gay men, bisexuals, and especially transgender individuals, as well as significant activism for antidiscrimination laws and against another major area of formal inequality—the military.

Nathaniel Persily: It should also be noted that gays, while much more supportive of marriage equality than heterosexuals, have not been uniform in their support.

As of 2004, for example, when faced with three options—marriage, civil unions, and no legal recognition—half of those who called themselves gay, lesbian, or bisexual said “they should be allowed to legally marry,” 31 percent said “they should be allowed to form civil unions but not marry,” and 17 percent said “there should be no legal recognition of their relationships.” I suspect the preference for marriage has grown by between 10 and 20 percentage points since then (as it has with the population in general), but the 2004 poll gives a sense of the diversity of views within the gay community, as well.

Suzanne Goldberg: As these numbers suggest, many same-sex couples are seeking to be treated much like their straight neighbors, much like many (though
not all) gay activists in the 1970s sought to be seen as just as “normal” as their heterosexual counterparts.

More generally, the words of Justice [Anthony] Kennedy when he wrote the opinion striking down Texas’ sodomy law in 2003 are both instructive, and possibly predictive, about the future of laws excluding same-sex couples from marriage: The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

Katherine Franke: But liberty and equality aren’t the only rights being argued in the marriage cases. In many of them, the primary argument being made is that exclusion from marriage creates a dignity harm by refusing to acknowledge that same-sex unions are entitled to the same dignity and respect as different-sex unions. Yet to do so is to take for granted that marriage is something sacred, something to be honored, and something that dignifies those who earn its blessings. But doesn’t it, at the same time, risk implying that there is something undignified about a sexual relationship outside of marriage?

Suzanne Goldberg:
To me, the dignity claim is rhetorically powerful because of its connection to equality: When we, as a society, deny some people equal access to state-sponsored institutions, whether marriage or anything else, we, in effect, treat the denied group as less worthy than the others. At the same time, Katherine’s question illustrates the tremendous power that government regulation has to sanction, or not, individual choices about intimate relationships.

Elizabeth Emens:
Katherine highlights the longstanding debate among
LGBT folks about the degree of prominence that marriage should have in movement politics—a debate that raises interesting questions about the value of marriage
more generally.

Nearly 10 years ago, I wrote an article about multiparty relationships, or “polyamory.” The article grew out of an oddity about the same-sex marriage debate: Although the left and right were deeply divided about same-sex marriage, there nonetheless seemed to be near-consensus against multiparty marriage.

That article didn’t argue for multiparty marriage, but after I wrote it, a lot of people asked me whether I thought multiparty marriage was a realistic possibility. I do not see any sign of a political move in this direction, but thinking about multiparty marriage does highlight some interesting questions about the function and value of state-sponsored marriage.

Nathaniel Persily: In response to Liz’s comment with respect to polygamy, there are few family values issues for which the national consensus is more uniform. More than 90 percent of Americans consistently say polygamy is “morally wrong,” as compared to a little less than half who say the same about “gay and lesbian relations.” Although I haven’t seen polling on legalization of polygamy, I suspect the figures are comparable. In fact, a poll of Canadians found that 85 percent oppose legalization of polygamy, and they tend to be a bit more liberal on such issues than their neighbors to the south.

Elizabeth Emens:
 One objection to multiparty marriage is that marriage brings with it privileges that the state would be hard-pressed to extend to groups of more than two. Many people think of marriage as primarily important for the social recognition that may accompany the state’s stamp of approval, and for private benefits, such as access to employer-provided health care. But marriage also usually brings with it some legal privileges that only the state can provide.

In particular, the state often grants, as part of marriage, three things that seem to overlap with common conceptions of intimacy: testimonial privilege (the ability to share secrets with a partner); untaxed transfers of wealth (the ability to share money freely); and automatic immigration priority (the ability to share bodies). In each of these, the state gives up something: full investigative powers, tax revenue, and flexible authority over national borders, respectively.

I have long questioned the value of having the state involved in the marriage business at all, but only the state can grant these items, which are considered by many to be important for certain kinds of closeness. So what do you all think? Should these benefits be conditioned on marriage, as they are now?

Katherine Franke:
 Liz’s comments reveal how the marriage equality movement may, in important respects, aim for too little. Allowing same-sex couples to marry holds little comfort for the large group of people who need access to health insurance and other forms of legal and financial security but can’t, or won’t, get married to get them. I’m thinking, for instance, of two sisters who rely on each other as “domestic partners” but can’t marry to gain financial security or get on one another’s employment-related health insurance policy.

Nathaniel Persily: If we were writing on a clean slate, I think getting the government out of the marriage business altogether makes sense. However, our legal regimes, at all levels, are so enmeshed with assumptions and requirements based on marital status that this alternative is simply not feasible or realistic. That then puts advocates in the difficult position of carving out a different status (in law and/or norms), or of trying to open up an existing category (i.e., marriage) to those who have not had access previously.

It will be interesting to see whether allowing gays and lesbians to marry will necessarily lead to a devaluing of non-marital relationships—same-sex or opposite-sex. The trends in the Gallup polls have been in the opposite direction: Majorities now say sex before marriage, and even having a baby outside of marriage, is “morally acceptable.” A majority (57 percent) also believes that “an unmarried couple that has lived together for five years is just as committed in their relationship as a couple that has been married for five years.”

My guess is that opening up marriage to same-sex couples will have less of an effect on attitudes and more of an effect on stultifying legal developments that would have extended marriage-like benefits to unmarried couples.

Katherine Franke: One remarkable sign of the recognition of the “rightness” of this cause reaching out well beyond the gay and lesbian community is the lawsuit filed in federal court in California by David Boies and Ted Olson challenging the legality of Proposition 8, the amendment to revoke marriage rights for same-sex couples. Boies and Olson, two very prominent heterosexual lawyers who seem to agree on nothing else but this issue, have pushed ahead with the lawsuit over the strong objections of many leaders in the LGBT communities—including the communities’ lawyers, who have been thinking hard about strategy and venue for years.

This case raises some tough questions: Who “owns” the issue? What are the stakes
for people who are not gay or lesbian? And what sort of ethical obligations do lawyers
in cases like this owe to the communities most closely impacted by the outcome
of the litigation?

Suzanne Goldberg: As Katherine’s questions suggest, the Boies/Olson lawsuit raises the stakes of marriage litigation dramatically. Their lawsuit turns on federal constitutional claims, unlike nearly all of the marriage equality suits brought by the longstanding LGBT rights litigation groups, which have sought—and won—marriage equality based on state constitutional guarantees. This framing means that the case could potentially (though not necessarily) have far-reaching, national impact on the rights of same-sex couples to marry.

After Boies and Olson raised the stakes in this way, they should not, in my view, have blocked the LGBT advocacy organizations from joining the lawsuit and sharing their substantial expertise with the court.

It is not at all certain that the case will reach the Supreme Court, and if it does, there may be other suits already there, as both gay married couples in Massachusetts and the state of Massachusetts itself have challenged portions of the Defense of Marriage Act that ban federal recognition of same-sex couples’ marriages.

Nathaniel Persily: It is possible that a Supreme Court decision in a case, such as the one brought by Olson and Boies, might lead to an acceleration or reversal of the trajectory of opinion, but I think it is unlikely. The structure of opinion appears to follow other equality issues (e.g., school integration and interracial marriage), as opposed to liberty issues (e.g., abortion). We see about a 1.7 percentage point shift each year in favor of marriage equality.

More importantly, since the 2004 election, when the backlash was at its peak (or trough, if you prefer), no events, such as court decisions, appear to have had any effect on public opinion. The trajectory of opinion in states where courts have legalized same-sex marriage mirrors the trajectory in all other states. In other words, although different states and regions vary greatly in the share of their population that supports same-sex marriage, in all states the trends are going in the same direction: toward allowing gays and lesbians to marry.

Elizabeth Emens:
Katherine’s comments about the Boies/Olson litigation also asked about the stakes for straights in the same-sex marriage debate. Some scholars have argued that same-sex marriage might actually improve straight marriages, or at least make them more equal—by, for instance, modeling relationships in which roles are not divided according to sex and family responsibilities are shared more equally.

Mary Anne Case of the University of Chicago Law School has argued, more specifically, that the legalization of same-sex marriage is better for straight people (or at least for straight women) than the creation of same-sex civil union or domestic partnership regimes. Most civil union or domestic partnership regimes require partners to engage in traditional marital behaviors, such as living together and sharing bank accounts.

Marriage, by contrast, has few requirements for entry and largely allows the parties to devise their own relationship model. Thus, Case suggests, adapting marriage to include same-sex couples, rather than creating new institutions for gays, may, ironically, allow for more departures from the role-based expectations that have historically accompanied marriage.

These arguments don’t counter the concern that the Boies/Olson litigation is a strategic mistake if it causes the Supreme Court to hear the issue too early—and I don’t mean to speculate on why Boies and Olson brought this litigation—but these arguments do highlight some of the substantive reasons why straights who favor gender equality may have something to gain from same-sex marriage.

Suzanne Goldberg:
I would add that while today’s conflicts regarding marriage equality have their most immediate and personal effect on couples who would want to, but cannot, currently marry, the public debate also tells us a lot about ourselves as a nation. In that sense, I have often thought that we might describe the nation as in something akin to an adolescent phase with respect to marriage equality for lesbian and gay couples. From my perspective, as a supporter of equal marriage rights, we seem to be maturing, slowly but surely, by increasingly recognizing the importance of equality in this area—although at times, we (or, more accurately, a significant segment of Americans) want to slam the door shut in the face of this movement toward equality.

We see ads supporting California’s amendment to revoke marriage rights that aim to stir up long-debunked fears about gay people as predators of children, and other ads that aim to treat gay people’s claim to equality as a danger to society’s well-being. And, as in California and now in Maine, we see virulent fights to strip away equal marriage rights gains that have been made.

My strong sense, as confirmed by Nate’s data, is that we will move successfully through this adolescence and ultimately recognize that, like it or not, the state should not be in the business of having two sets of relationship rules, one for same-sex couples and another, more protective set, for everyone else.  


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