Marriage and Family Law Pluralism: Commentary on Eskridge and Riano’s Marriage Equality: From Outlaws to In-Laws

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

 Doug NeJaime

Yesterday I focused on the innovative and important LGBT family law work documented in William Eskridge and Christopher Riano’s breathtaking book, Marriage Equality: From Outlaws to In-Laws. I discussed domestic partnerships, designated beneficiaries, second-parent adoption, parentage judgments, and voluntary acknowledgments of parentage (VAPs). I did not discuss marriage. Yet the book is an account of the path to marriage equality. Today, I’ll explore the tension between the family law pluralism I addressed yesterday and the fight for marriage equality at the heart of the book. Eskridge and Riano carefully analyze this tension—detailing how LGBT efforts were channeled into marriage and contemplating the legal regulation of families in a post-marriage equality world.

Eskridge and Riano frame the entire book through the story of Rowse and DeBoer. These two women wanted to have their relationships to their children recognized and thus sued for access to second-parent adoption. (p. 3) For a variety of reasons, including the urging of the federal judge assigned to their case, Rowse and DeBoer’s lawsuit become a marriage suit. It was not just any marriage suit; it was one of the cases decided in Obergefell v. Hodges, the 2015 U.S. Supreme Court decision opening marriage to same-sex couples. Once married (in a ceremony officiated by the very judge who presided over their case), Rowse and DeBoer secured their parentage with respect to all of their children by undertaking stepparent adoptions. But they should not have had to marry to establish their parental status. Today, Michigan allows same-sex couples to marry but does not expressly permit second-parent adoption.

Eskridge and Riano’s focus on Rowse and DeBoer shows how significant they view the tensions created by the movement’s drive toward marriage. The authors spend a good deal of time discussing left critiques of the marriage equality campaign—critiques lodged both by movement insiders and by scholars of gender, sexuality, and the family. They grapple with the serious issues these critiques raise. They worry that the movement’s focus on marriage made outsiders of those whose relationships did not fit neatly within marriage’s confines. They express concern that the messaging necessary to secure marriage equality further cements the special status of marriage and thereby demeans unmarried people. (p. 711) And they contemplate whether the U.S. Supreme Court’s decision in Obergefell supplies the legal justification for withholding rights and obligations from nonmarital families, including children in those families. (p. 729)

But Eskridge and Riano are not wholly persuaded by critics on the left. (p. 730) Instead, their wide-ranging and nuanced account of LGBT advocates’ family law work—marriage-related and otherwise—reveals a more complex story in which marriage resides alongside other family law developments—domestic partnership, designated beneficiaries, second-parent adoption, intended parentage, and so on—that respond to the needs of those who exist outside marriage. (p. 717) The family law pluralism we are left with is uneven and partial, happens in fits and starts, and sometimes takes a step backward, but it is family law pluralism nonetheless.

LGBT people created family arrangements that defied conventional norms. LGBT advocates struggled to forge new forms of recognition to accommodate these unconventional family arrangements. At the same time, LGBT advocates and their constituents felt the draw of marriage. Some desired inclusion in an institution accorded such great societal and legal significance. But even those who did not desire such inclusion were constrained by the normative force of marriage and the legal framework that privileged it. Against this marriage-centered backdrop, it seems even more remarkable that LGBT advocacy transformed important dimensions of family law outside marriage.

As Eskridge and Riano show in great detail, marriage played a complicated and important role in the modern LGBT movement from the very start. Marriage itself was changing over the period, including because of feminist demands for reform reflected in the pioneering work of the late Justice Ruth Bader Ginsberg. (p. 708) As Michael Boucai has shown, same-sex couples’ claims to marriage in the 1970s, in the early years of gay liberation, represented a radical challenge to the gendered norms that structured intimate relations.

While marriage became more egalitarian (at least as a formal legal matter) over the ensuing decades, marriage also began to become less central to the family lives of many Americans. In the late twentieth century, marriage rates declined and nonmarital cohabitation and childrearing became more common. Yet, marriage retained much of its social status and legal privilege. For LGBT advocates critical of marriage’s discriminatory history and exclusionary meanings, they nonetheless found that marriage continued to exert a significant force over the legal and cultural imagination of LGBT and non-LGBT people alike. As I have argued elsewhere, “marriage functioned like a riptide. Advocates were swimming with and against marriage, often at the same time. That is, they challenged marriage’s role even as they submitted to its pull.”

For Eskridge and Riano, simply because LGBT claims increasingly were channeled into marriage does not mean that family law pluralism stalled or died. Instead, important innovations remained.

Consider first adult relationships. While critics tend to focus on the disappearance of marriage alternatives such as state-law civil unions and domestic partnerships, Eskridge and Riano carefully describe the new statuses that have survived. (p. 732) Most importantly, many private employers and local governments maintain domestic partnership policies that allow unmarried individuals to access their partner’s health insurance coverage. Statuses like designated beneficiaries also have survived. But as Eskridge and Riano show, very few people have signed up. (p. 732) That may offer important information for those working for family law pluralism. Perhaps there is little appetite for official statuses other than marriage. Perhaps a system that aims for more just family policy should explore ascriptive remedies over opt-in statuses. Even if the remaining mechanisms developed by LGBT advocates have little concrete effect, they may teach us about how to design a pluralistic family law regime.

Consider next parent-child relationships, which offer stronger support to the account of family law pluralism that Eskridge and Riano supply. (pp. 736-38) Earlier innovations persist, and LGBT advocates continue to press new and more inclusive reforms. LGBT lawyers devised mechanisms, such as second-parent adoption, that remain an important part of the family law system. They are also pushing new ideas, like the gender-neutral and nonbiological VAP,  that seem poised to become part of the family law system in many states. While the impact of adult relationship mechanisms like domestic partnership may be fading in light of same-sex couples’ access to marriage, innovations with respect to parent-child relationships are only increasing in importance. More and more families depend on paths to parental recognition that do not turn on marital status or biological connection.

In their work on both adult and parent-child relationships, LGBT advocates did not simply develop family law that served LGBT interests; they served the interests of many others who form families that break from conventional norms. They endeavored to include different-sex couples and non-conjugal relationships in statuses like domestic partnership and designated beneficiaries. They crafted second-parent adoption in ways that move beyond intimate or cohabiting relationships so as to allow relatives and other caregivers to have their co-parent status legally recognized with the consent of the existing legal parent. Parentage judgements, as well as the VAP included in the UPA, can be used by same-sex and different-sex couples, married and unmarried, who have children through assisted reproduction and with third-party gametes.

The LGBT movement’s inclusive approach is both normative and strategic. LGBT advocates have long articulated and embraced an ethos that challenges restrictive and exclusionary understandings of the family and instead values “families we choose.” On this view, advocacy should promote autonomy and equality and should respect the work of caregiving. At the same time, the movement’s regard for non-LGBT constituencies has been crucial to gaining support and building coalitions. In California, as Scott Cummings and I explained, LGBT advocates responded to the governor’s refusal to support a statewide domestic partnership law open to all same-sex and different-sex couples by bargaining to include different-sex couples over 62—a move that provided at least some non-LGBT people with an alternative to marriage while also satisfying some politicians and garnering influential support from a sympathetic constituency.

While I have focused on family law developments that push outside marriage, even marriage, through the lens provided by Eskridge and Riano, looks different in important ways than it did before LGBT advocates made claims to inclusion. Yes, Rowse and DeBoer reluctantly channeled their parenting claim into a marriage claim, and their parental ties gained legal recognition through stepparent, not second-parent, adoption. But the principles of parental recognition within marriage have become more aligned with the pluralistic ethos of LGBT family law work. As I have argued at length here, an approach to marriage that includes same-sex couples values an intentional and functional approach to parenthood over a gender-differentiated and biological approach to parenthood. (Indeed, Eskridge and Riano carefully document how judges and lawmakers came to reject the latter understanding as they ruled in favor of same-sex couples’ marriage claims.) Now, for example, the marital presumption of parentage looks less like a proxy for biological paternity and more like an indication of a shared intent to co-parent.

Not only does the legal regulation of marriage look different in some ways, but same-sex couples’ inclusion in marriage has consequences outside marriage. As Eskridge and Riano show, the LGBT movement’s success on marriage equality is not only about marriage but also about equality—signifying an endorsement of the legal and social equality of LGBT people. As I have shown, this equality principle has consequences outside of marriage. A family law regime that treats LGBT people as fully belonging necessarily embraces nonbiological parent-child relationships. When a parentage regime provides paths to nonbiological parental recognition, such as intent- and conduct-based mechanisms, it not only embraces LGBT parents; it also offers a more inclusive approach to parentage that meets the needs families across society.

On this view, family law pluralism, which owes much to the creative work of LGBT movement actors, is alive and well. As Eskridge and Riano’s wide-ranging text suggests, no neat or simple description can capture the complexity of the struggles over LGBT families. Conflict will continue. Law in some areas will regress. Law in other areas will grow. Law will look different across jurisdictions. But the principles of pluralism and inclusion that have long animated the LGBT movement—and that shine through in Eskridge and Riano’s Marriage Equality—will continue to shape developments in family law as we aspire to a legal order that respects the “families we choose.”

Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School. He can be reached at douglas.nejaime@yale.edu.