Is Marriage the Problem Rather than the Solution?

As the debate over who should be allowed to marry unfolds across the nation, law professor and author Nancy Polikoff is asking straights and gays alike to consider a broader approach to thinking about what constitutes familial commitment and how it should be legally protected. In her book Beyond (Straight and Gay) Marriage, Polikoff calls for a revamping of regulations related to family law, including death benefits, medical leave and divorce -- all with the end goal of reducing marriage’s privileged status in deciding these matters. To make her case, Polikoff cites numerous examples of legal benefits automatically accorded to marriage that frequently end up hurting children and, for that matter, anyone in nontraditional families, including unmarried couples both gay and straight. As Polikoff puts it bluntly: "People who marry 10 days after they meet get legal consequences, and ones who live together for 20 years don’t." If Polikoff had her way, she explains in the interview that follows, marriage would no longer be "the dividing line between who’s in and who’s out." Instead, the law should value all families, according to Polikoff -- an increasingly compelling proposition at a time when more than half of U.S. households are headed by unmarried people and one third of children are raised in homes by unmarried people.

Below are excerpts from a lengthy telephone interview with Polikoff.

Amy DePaul: What’s the basic argument you’re making in your book?

Nancy Polikoff: That marriage shouldn’t be the dividing line between relationships that have legal consequences attached to them and those that don’t. People live in all sorts of family constellations and raise children in all sorts of family constellations. What we need to do is look at the many laws now that do draw this division between married people and everyone else and ask, why do we have those laws and what are we trying to accomplish?

AD: Can you give an example?

NP: We have a scheme of workers comp law that says if you go to work and die on the job, benefits will be paid to somebody, and the purpose is to provide some income replacement to someone who was dependent on the worker who died. For the vast majority of these laws, if you’re talking about adult relationships, they do require that a couple be married in order for the survivor to recover, so that if you are an unmarried partner or any other kind of intimate relationship that isn’t marriage, where one is dependent on the worker who dies, you get nothing. The purpose of the law is to compensate for the loss of an income earner. That says to me that anyone who depends on that income earner should be able to get that compensation [married or not].

AD: What about another example?

NP: Our wrongful death system is very rigid. You’re either married or you’re not married in most places. That’s it. If an unmarried partner dies because a drunk driver hits them, a surviving unmarried partner will get nothing … Instead, those damages could go to a surviving parent or sibling who in no way was dependent on that person for support. An unmarried same-sex partner is not on the list unless they are domestic partners or in a civil union in one of the handful of states that have that status. If you are different- or same-sex partners [but unmarried], you don’t get to sue. You get nothing. If you had a kid, the kid could recover. But what if you lived together for 20 years with the child of your unmarried partner? [In the case of your wrongful death], that child and partner will get nothing.

AD: What are some other reforms you’re proposing and are there any models of success?

NP: Look at family leave and sick leave ... The Family and Medical Leave Act requires large employers to provide family leave -- in this case, spouse, parent and child. The definition for adults in too narrow but the Act defines child as anybody to whom you stand in loco parentis, that is, you’re functioning as a parent. Regulations make clear you don’t have to be a biological parent. I like that. Anyone raising children should be able to take leave to take care of that child.