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Is Marriage the Problem Rather than the Solution?

Author Nancy Polikoff discusses how to change the law so that all families get the legal protections of marriage.

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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.

AD: Are there other examples of flexibility in family leave?

NP: The federal government allows its employees to use their own sick leave to take care of anyone with whom they have a close association that is the equivalent of a family relationship. So that’s what federal government employees get, and it’s part of Sen. Kennedy’s Healthy Families Act, a [proposed] law that would require all employers to provide a paid number of sick days.

The federal employee law is ideal because it lets people define their own families. Let me give an example. I have a friend whose mother is widowed and lived with her male partner for 20 years. He got very ill. My friend, who is a federal employee, was able to use her sick leave to help take care of her mother’s partner, whom she certainly considered a stepfather and had been a member of her family for almost half of her life. He falls within the definition of being close enough to someone to have it be the equivalent of a family relationship. Yet the narrow definition of family wouldn’t include him.

AD: How would you decide if someone is close enough to be a family member that he/she is covered under a broad definition of family for purposes of medical leave?

NP: Well for this one we have many years of federal government experience applying their standard. I admit it is very broad. Abuse is possible with any policy, but I think more research could be done on how it has worked for the feds all these years. As a fallback, "all household members" is better than a narrow definition of family.

AD: You mentioned the prospect of defining one’s own family -- is this a new and revolutionary idea?

NP: In 1950, the U.S. Census first defined family as husband, wife and children. It used to be a census of households. Family -- whatever the word comes from in Latin -- used to mean everybody in your household, including your servants. Family hasn’t meant one thing over time.

Let me give you a good example. The Miguel Braschi case begins one of the chapters in my book. It was a famous gay rights case at the time. There was a couple in a rent-controlled apartment. One of them died. They had lived together for over 12 years but the one who died was the only name on lease. Landlords in New York want to get these apartments back so they can rent at market rate, so they wanted to evict the surviving partner. The law said if the main tenant died, anyone in the apartment who was family had protection from eviction, and so the landlord argued a conventional definition -- that is, the definition of family if a person dies without a will, which is spouse, parents, child or siblings. The highest court in New York ruled in favor of the surviving partner. The court said you’ve got to look at the reality of family life and not this fictitious idea.

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