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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: Are gay activists in a unique position to lead a broader agenda that includes straight couples and nontraditional families?

NP: The legal definition of family beyond spouse tends to go child, parent, siblings. And gay people as a group I think are more likely to have a different way of thinking about their family. For many of them it’s because of estrangement due to sexual orientation. They have moved away from where they were raised to live in a place that’s more hospitable to openly gay people. They may have been emotionally disowned by their parents when they come out and yet those people remain their legal next of kin. If you look at the history of the AIDS crisis when everyone was dying and you see who gay men had gathered around them, they had a network of people who had no legal connection to them and some of them learned the hard way what it meant to have an estranged parent get to make all the decisions or exclude the people who had cared for that person. I think many gay people have constructed lives outside the box that I do think make them sensitive to a greater definition of what family is. And I do think because there is not the automatic tracking into marriage, gay people have been more creative.

Also, I’ve seen that depth, value and longevity of relationships are not dependent on marriage. Having economic and emotional interdependence in an intimate relationship for years or decades, gay people have proven marriage doesn’t determine whether one really is a family. Being able to marry shouldn’t mean that the people who marry 10 days after they meet get legal consequences and ones who live together for 20 years don’t. Because gay people have experience of longevity in relationships… we can see you don’t need marriage to have stable family lives.

There’s an organization called the Alternatives to Marriage Project. It’s small but they have a clear position that looks at these issues and says what’s wrong with them. Are gay people uniquely positioned to lead this [fight to end marriage privileging]? I suppose I would say not necessarily. I believe the founders of the Alternative to Marriage Project were heterosexual. I think they founded the organization because they were very clear that you shouldn’t have to be married to get fill-in-the-blank.

AD: Why not abolish marriage?

NP: Some people challenge me on this. It turns out among the many things I’ve learned is that marriage, the ability to marry, does seem to mean a lot to many people, gay and straight. I decided with uncharacteristic humility that it wasn’t my place to say that they were wrong to want something so much. If I can retain a legal system where there is marriage but it’s not the dividing line between who is in and out, I have accomplished my purpose.

AD: So marriage becomes a ceremony?

NP: It’s still a legal status. In the world I’ve constructed, given how much marriage means to many people, we’d retain marriage, although I say we should change the legal name of marriage to "civil partnership." In California, there is no divorce in the state law. They changed the word to "dissolution of marriage." They changed the law because "divorce" had a bad connotation, and "dissolution" sounded better. Statutes have changed "alimony" to "maintenance"; instead of "custody," "parenting time." And yet I’m sure everyone whose marriage ends says they are divorced. "Marriage" has baggage we should be doing away with: the exclusion of slaves, of interracial relationships, the oppression of women. "Marriage" has a sordid legal history. Make it "civil partnership" and let everyone who wants say they are married. There’s very good precedent for taking old family law terms that have outlived their contemporary usefulness and giving them new words, and I would like to do that to marriage. Religious institutions can keep the word and people can be married in their churches and synagogues.

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