Saturday, January 12, 2013

Shaping Marriage through Non-Marriage

Guest Blogger

Douglas NeJaime

The Supreme Court recently announced it will consider two cases involving marriage for same-sex couples.  In United States v. Windsor, the plaintiff challenges Section 3 of the federal Defense of Marriage Act, which withholds federal recognition to same-sex couples’ valid, state-law marriages.  In Hollingsworth v. Perry, the plaintiffs challenge California’s Proposition 8, which built a prohibition on same-sex marriage into the state constitution.
A core disagreement between same-sex couples seeking marriage recognition and social conservatives defending those couples’ exclusion centers on the meaning of marriage itself.  In both cases, the defenders of the marriage prohibitions – the Bipartisan Legal Advisory Group in Windsor and the official proposition proponents in Perry – argue that the discriminatory marriage laws should be upheld because they cement a traditional view of marriage geared toward procreation and dual-gender childrearing.  Only different-sex couples, they claim, fulfill these purposes of marriage.  Those challenging the laws counter that same-sex couples fit within the contours of marriage, forming loving and committed relationships that are marriage-like in important ways.  Accordingly, the issue of whether marriage can and should include same-sex couples involves an inquiry into the content of marriage and the function marriage serves today.

Of course, the Court will not determine same-sex couples’ relationship to marriage in a vacuum.  Powerful social movements have shaped – and continue to shape – the meaning of marriage.  In the second half of the twentieth century, civil rights activists contested race-based limitations on marriage, exposing the way in which regulation of the family contributed to a racial caste system.  Women’s rights advocates challenged the gender-differentiated family roles that pervaded both law and culture and opposed the state’s intrusion into choices regarding sex and reproduction.  These progressive shifts did not go unchallenged.  A powerful conservative countermobilization defended a model of marriage that celebrated, rather than criticized, different roles for women and men and sought to cabin legitimate sex and childrearing within (different-sex) marriage.

The organized lesbian, gay, bisexual, and transgender (LGBT) movement did not officially enter the marriage fray until the 1990s.  When a same-sex marriage suit in Hawaii – filed against the advice of movement lawyers – moved up the appellate chain, lawyers from Lambda Legal advised the plaintiffs and filed an amicus brief.  The Hawaii Supreme Court’s surprising 1993 decision in Baehr v. Lewin,  holding that the state marriage law classified based on sex and thus must be subjected to strict scrutiny under the state constitution, unleashed the issue of same-sex marriage onto the national legal and political scene.  LGBT movement advocates had to respond, both to same-sex couples’ desire to litigate and to the powerful countermobilization seeking to legislate and constitutionalize marriage prohibitions.   The modern marriage equality movement had begun, and in 1999 and 2003 movement lawyers recorded landmark victories in Vermont (civil unions) and Massachusetts (marriage), respectively.

But long before Hawaii, Vermont, and Massachusetts, many LGBT advocates were building the case for marriage equality that we see today.  They did so by working explicitly outside of marriage.  LGBT advocacy in the 1980s and early 1990s aimed at nonmarital recognition and support, specifically through the concept of domestic partnership, produced an image of same-sex couples as marriage-like and, at the same time, contributed to a model of marriage capable of accommodating same-sex couples.  Marriage constructed the terms of nonmarital recognition in ways that signaled both the regulatory reach of marriage and the blurring line between married and unmarried relationships.  Same-sex couples earned nonmarital support by stressing their fulfillment of certain marital norms – norms that reflected progressive changes produced by other movements and shaped by broader demographic shifts.  Advocates emphasized adult romantic affiliation and emotional and economic interdependence over procreative sex and dual-gender childrearing.  Ultimately, while working outside of marriage – indeed, resisting challenges to marriage laws – advocates seized on and shaped evolving marital norms in ways that reflected lesbian and gay family life.
To be sure, some advocates sought to destabilize marriage and rejected a vision of LGBT advocacy that included marriage recognition.  I am not suggesting that movement advocates spoke in a consistent or uniform pro-marriage voice or that they always consciously built the case for marriage.  Yet ample evidence shows that a significant strand of LGBT advocacy in the 1980s and early 1990s valued same-sex couples’ right to marry.  Advocates and many of their constituents understood lesbian and gay relationships as marriage-like and viewed marriage as an ultimate goal that was simply unrealistic at the time.  Moreover, whether advocates liked it or not, marriage structured the field in ways that constrained their choices and cast nonmarital recognition in marriage-like terms.  Accordingly, for both normative and strategic reasons, many advocates accepted marriage’s dominance.

By exploring this earlier era of nonmarital advocacy, we can better understand the current moment.  In the 1980s, advocates argued that same-sex couples deserved recognition through domestic partnership because they formed loving, committed relationships characterized by mutual emotional support and economic interdependence.  Today, advocates argue that same-sex couples deserve recognition through marriage for much the same reason.  LGBT advocates did not simply latch onto this contemporary model of marriage when they began to litigate marriage claims.  Rather, they joined other late twentieth-century social movements in directly contributing to and producing that model.  Yet unlike these other movements, LGBT advocates did so by working exclusively outside of marriage.  Even as marriage constrained and constructed nonmarital recognition, advocates mined the spaces of unmarried life to create marital meaning.

Douglas NeJaime is Associate Professor of Law at Loyola Law School. You can reach him be e-mail at douglas.nejaime at

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