an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This year marks the tenth anniversary of Lawrence v. Texas In Lawrence, the U.S. Supreme Court struck down a Texas criminal statute prohibiting same-sex sodomy, concluding that “two adults who, with full and mutual consent from each other, engage in sexual practices common to a homosexual lifestyle…. are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Much has changed since Lawrence. Though Justice Kennedy insisted that the decision did not involve “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” most recognized that the decision laid the foundation for same-sex marriage. Indeed, a few months after Lawrence was announced, the Massachusetts Supreme Judicial Court struck down that state’s law limiting civil marriage to same-sex couples. Citing Lawrence for support, the majority noted that “[w]hether and whom to marry, how to express sexual intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights.” Today, more than ten U.S. jurisdictions recognize same-sex marriages, and the U.S. Supreme Court recently granted certiorari in two cases that seem poised to resolve the question of legal recognition of same-sex marriage for purposes of federal law and the U.S. Constitution.
If legal recognition of same-sex marriage—which once seemed impossible—seems now to be in the offing, in what new, uncharted territory might Lawrence take us in the next ten years?
Two recent cases suggest new frontiers for liberty and equality in intimate life. In Sevcik v. Sandoval and Darby v. Orr, same-sex couples in Nevada and Illinois filed suit challenging those states’ laws limiting civil marriage to opposite-sex couples. Most of the commentary about these cases has focused narrowly on the question of legalizing same-sex marriage. But, in my view, these cases also speak to another issue—one that lies on the frontier beyond same-sex marriage.
Critically, though Nevada and Illinois do not permit same-sex marriage, both states recognize alternative statuses—civil union (Illinois) and domestic partnership (Nevada). As in some other jurisdictions, these alternative statuses were created as a compromise measure affording rights and benefits to same-sex couples while avoiding the legalization of same-sex marriage. However, unlike some other states, in both Nevada and Illinois, these alternative statuses are available to all eligible couples, whether gay or straight.
Of course, as the Sevcik and Darby plaintiffs make clear in their complaints, the availability of an alternative status amounts to an injury if it is intended as a separate but equal alternative to marriage for same-sex couples. But what if civil union and domestic partnerships were not dignitary injuries? What if alternative statuses were not intended as cut-rate proxies available only to those who are legally excluded from marriage? What if they were available, alongside marriage, to all couples, whether gay or straight? What if they were simply one of many options for relationship recognition that couples might seek?
To my mind, the new frontier that lies beyond legal recognition of same-sex marriage—the new frontier to which Lawrence’s promise of liberty and equality in intimate life points—is the question of multiple forms for legal recognition of families and relationships.
Although the legalization of same-sex marriage on a national scale will be an enormous triumph (when it happens), it will not necessarily provide equality and liberty for all families. Even after this monumental step, there will be those—whether gay or straight—for whom marriage has not been—and will not be—the answer. There will be those who long for some, though not all, of the benefits that marital recognition confers. There will be some who resist marriage because if its history of exclusion and gender subordination. There will be those who want legal recognition of their relationships and families, but who chafe at the thick state regulation that accompanies marriage. However, in terms of relationship recognition, marriage is the only game in town. And because it is the only game in town, legal recognition of families proceeds along narrow lines.
If past is prologue, our recent history does not suggest much in the way of relief for those who seek a broader range of options for relationship recognition. Consider Connecticut and Vermont, which recently legalized same-sex marriage. Upon legalization, both states phased out their civil union status, ensuring that marriage would be the only available option for relationship recognition. Likewise, when New York legalized same-sex marriage in 2011, some companies that had earlier extended benefits to registered domestic partners announced that, going forward, benefits would be available only to married spouses. Though the opportunity for a range of options for relationship recognition existed, marriage’s monopoly on the legal recognition of adult relationships was confirmed.
Although Sevcik and Darby are focused on dismantling opposite-sex only marriage regimes, they have the potential to focus conversations on relationship recognition pluralism. If the plaintiffs are successful in expanding civil marriage to include same-sex couples, the state legislatures in Nevada and Illinois will have to address the existing alternative statuses. One option will be to do what other jurisdictions have done, and simply herd all relationships into marriage’s boundaries, jettisoning the alternative statuses. But another, perhaps more intriguing option, is to do what the District of Columbia did. In 1992, D.C. established its domestic partnership regime, making it available to unmarried couples (including those related by blood, such as siblings). Upon legalizing same-sex marriage in 2009, D.C. did not scrap its existing domestic partnership regime. Instead, it continued to make domestic partnership available to all eligible couples as an alternative to marriage for relationship recognition.
As we reflect on Lawrence’s tenth anniversary, the question of relationship recognition pluralism directly implicates the commitment to liberty and equality that Lawrence affirms. If same-sex marriage was among the first generation of issues to emerge in Lawrence’s wake, hopefully relationship recognition pluralism will be among its second-generation progeny.
Melissa Murray is Professor of Law at the University of California, Berkeley. You can reach her by email at mmurray at law.berkeley.edu