Wednesday, September 30, 2020

Inside History

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).

 June Carbone and Naomi Cahn

  From Outlaws to In-Laws is masterful on so many levels that it would take the rest of this review just to list them. It is a readable, social, legal, religious history that documents the efforts to achieve marriage equality in the United States through interviews with the leading participants, close readings of legal briefs and cases, careful review of jurisprudence, and attention to demographic changes and the geographic context of the developments. And it is balanced, including discussion of the work of marriage advocates and foes from both within and outside of the LGBTQ+ movement. The book has been decades in the making (consider that some of the interviews were first conducted 20 years ago, p. 914), and the resulting volume provides both contemporaneous reactions and more long-term, retrospective analysis of the movement along with lessons for other social movements.

In a book this long (753 pages of text; 1026 pages total), it is hard to say that there is much that it does not cover; the questions about the book therefore have to be ones of emphasis.   This is above all an on-the-ground and contemporaneous account of a movement (with one of the authors appearing as an actor at times).  It  emphasizes how those in the midst of the fight weighed their options, compromised and then second-guessed the compromises, suffered setbacks, persisted, and ultimately prevailed in winning a national right to marry in the Supreme Court of the United States and ultimately in the court of public opinion.   It is a triumphal account and it has a right to celebrate a dramatic victory.    In the background, however, is a nagging question that remains unresolved: was marriage the right fight?

Movement activists had doubts from the beginning.  Paula Ettlelbrick, for example, questioned whether it was worth the effort to join so patriarchal an institution, one premised on established gender roles at odds with much of gay culture (pp. 75-76).  Nancy Polikoff joined Ettelbrick in also questioning whether the celebration of marriage would deepen the exclusion of “more marginal members of the lesbian and gay community (women, people of color, working class and poor)” (pp. 76, 513) and, indeed, the movement gained force “just as marriage was moving out of reach for working class and poor Americans” (p.  513).

In that sense, it is interesting to consider what might have been.  The authors detail the development of reciprocal beneficiaries, domestic partnerships, civil unions, and the pacte civil de solidarite (PaCS) that helped spur a heterosexual movement out of marriage in France (p. 157).  More critically, Eskridge and Riano mention in their reflections at the end of the book the development of innovative parentage principles, such as second parent adoption and de facto parentage (pp. 737-40) that permitted the creation of families of choice outside of marriage and the expansion of contractual provisions to cover health care decision-making and other subjects. 

For a period, it appeared that LGBTQ+ activists, driven by their inability to marry, would help create alternative family law doctrines that addressed the legal status of the increasing number of Americans who form nonmartial families.  While marriage equality opponents feared that gay marriage would undermine traditional unions, the far more plausible outcome is that barring LGBTQ+ couples access to marriage would have instead contributed to the dismantling of the institution.  That’s because the absence of marriage equality would have resulted in more attention to the rights of unmarried couples, fostering an enhanced ability to  pick and choose options that suited their individual arrangements and experiment with the creation of new family forms, with traditional marriage left to the religious, identified as it is in some parts of Europe with an outdated sectarian past. 

That did not happen in the United States, and the authors provide some insight into why.  The authors use Derrick Bell’s concept of “interest convergence” (pp. 646-49) to argue that movements for minority rights succeed only when majority interests and minority claims coincide.   And they maintain that the fight for marriage equality could succeed only after most Americans “concluded that expanding marriage would not harm treasured institutions or unduly influence children” (p. 647).  What they don’t emphasize to the same extent is that this transformation happened because the cultural meaning of marriage had changed, and that change did not just make it possible to imagine same-sex couples marrying, but, as we argued in Red Families v. Blue Families, drove home the point that it was unjust not to allow them to do so. 

 The critical first step, after all, in both the fight for LGBTQ+ equality and the transformation of marriage is the movement of sex out the closet.  At the beginning of this story of same-sex marriage, sex -- for everyone -- needed to be in heterosexual marriage or in the closet.  Marriage was the institution that channeled heterosexual sex (and its unavoidable risk of pregnancy) firmly into somewhere safe – a status designed to ensure that men accepted responsibility for their dependent wives and children.  The door into marriage (and therefore into acceptable sex) was shut firmly against LGBT couples and as a consequence, their sexuality, their identity, their love for each other, and their existence as a community was consigned to the shadows.  

 The sexual revolution opened the door.   That story begins in 1960, with the FDA’s approval of the Pill, at a time when nonmarital sex, between same-sex or different-sex partners, was still criminalized. As the availability of the Pill expanded during the 1960s, allowing women more control over whether sex resulted in pregnancy, marriage no longer became the mandatory institution for sex. And Eskridge and Riano note that “[w]omen’s increasing independence and assertiveness inspired gay men.”  [p. 9] Since 1970, the average age of marriage has increased, and so has the percentage of those who do not marry.  As unmarried sex became visible (and normalized) and heterosexual sex no longer intrinsically tied to procreation, the bias against homosexual sex became simply that: an ugly and unjustifiable prejudice. 

 That still does not answer the question, why marriage?  The second step in the transformation was the change in marital roles.    The increasing age of marriage – and the greater investment in women’s autonomy and workplaces ties -- radically changed marriage from an institution premised on women’s intrinsic dependence to one tied to formal equality.  Women won an equal share of marital assets; men won a right to shared custody.   Courts lectured long-term homemakers on the need to get a job and the majority of married mothers entered the labor market.  The idea of marriage as the union of one man and one woman who would perform complementary and intrinsically gendered duties was rapidly disappearing.  These changes threatened some traditional couples, of course, helping to fuel some of the opposition to marriage equality (p. 376), but the changes did not come from the LBGTQ+ community and they underscored the injustice of excluding same sex couples.  

 This leaves, however, the final step: what, then, is marriage for?   We explained in Red Families v. Blue Families that marriage has become a vehicle for upper middle-class investment in the human capital necessary to navigate an increasing competitive and insecure society.  The delay in marriage that came with embrace of the pill has made it possible to invest in women as well as men’s careers.   At the same time, juggling two careers, trading off child care, and managing job changes, lay-offs and changing children’s needs requires a high degree of commitment, flexibility and trust.  For those who can manage these committed relationships, the payoff in terms of greater investment in children can be substantial.   Yet, the commitment and interdependence underlying modern marriage has also become a threat: the ties to an improvident partner may, during an economic downturn or the partner’s drug induced bender, wipe out the more responsible one’s resources.  Sociologists describe modern marriage as a “capstone,” as an institution that signals maturity and accomplishment.  In Marriage Markets, we argued that the better way to understand the change in marriage is to recognize that it has become riskier because of the financial and behavioral instability built into modern families. 

 Understanding these forces then makes it possible to understand where the real interest convergence lies.   Eskridge and Riano emphasize that marriage equality involved public recognition, acceptance, and equal respect for same-sex relationships (p. 667).  Precisely because marriage is a public institution, regulated by the state, it confers a level of dignity that serves as a counter to the centuries of stigmatization associated with homosexuality. And as marriage has become a signal of accomplishment, it also became that much more important in the fight for equal rights.   The desire for recognition became an understandable part of the fight for LGBTQ+ equality..

 The remarkable part in this interest convergence, however, lies in the nature of the opposition, which used their objections to marriage equality to wage a politically profitable culture war that diverted attention from the economic forces undermining family stability . Eskridge and Riano poke fun at Justice Scalia’s reference to the “homosexual agenda,” which he defined in his 1996 opinion in Romer v. Evans as the effort at “eliminating the moral opprobrium that has traditionally attached to homosexual conduct” and that he saw as inevitably  culminating in same-sex marriage (p. 269).  They describe a later interview with the Justice in which they ask him about whether he saw himself as a modern day Cassandra, who correctly predicted the course of events. They conclude that he saw his target audience as Fox News, The Federalist Society and congressional Republicans who embraced him and saw his remarks as fodder for their political cause (p. 269).  During the years in which the fight for marriage equality took root, a well-funded countermovement associated the decline in marriage rates and the increase in nonmarital births to the move away from procreative intercourse as the purpose of marriage (pp. 253-256).  The reason that the poor, the working class and racial minorities were – allegedly -- no longer marrying?  Same-sex marriage and everything it represented.  Maggie Gallagher declared in 2003, “Once “Adam and Steve” can get married, it will be obvious that procreation and rearing children by mom and dad is not what marriage is about.” (p. 261).  President George W; Bush took these ideas and weaponized them during his 2004 re-election campaign (p. 271). 

 During this entire period of decrying the decline in marriage and somehow tying it to the fight for marriage equality, the forces remaking American families disappeared from view.  Growing economic inequality received little attention.  Conservatives discussing the “marriage problem” insisted that economics could not explain the changes; “culture” and marriage equality as “civilizational rupture” were more important (p. 261) .  Economists like Gary Becker attributed the family changes to loss of the “gains” that came from gender specialization; they did not study the impact of economic insecurity on working class family stability.     And although large majorities of the American public favored increased support for child care, paid family leave, and other measures that would have furthered gender equality, they received little political attention.  The truth is that the forces of opposition preferred to wage jihad against marriage equality rather than address any of the forces making marriage a marker of class.    

 The victory in Obergefell has reset the family agenda.  Scholars like Andrew Cherlin now talk about the disappearance of blue-collar jobs rather than the deinstitutionalization of marriage because of the disappearance of gendered roles (p. 253). Economists have finally decided that employment instability destabilizes relationships.  And the fight for LGBTQ+ recognition continues as it asks profound questions about the basis for adult commitment to children – inside and outside of marriage.  

Eskridge and Riano end their book noting that Obergefell “untethers civil marriage from religious doctrine and natural law but demands that the polity seriously ask the question posed twenty-one years ago by E.J. Graff: What is marriage for?” (p. 745)    In that spirit, we ask:

1.  Does Obergefell v. Hodges’ celebration of marriage proceed from marriage’s role as an obligatory institution or a voluntary one?    Have LGBT couples won access to marriage only because it has become an instrument of self-definition (and therefore intrinsically voluntary) or, now that LGBTQ+ couples are included, does marriage regain its status as the foundation of society and a prerequisite for family recognition and the legal definition of parenthood?   

2. Will marriage equality interact with changing gender roles to address provision for childrearing?   Marriage, as it has become more egalitarian in form, provides less recognition and protection of the childrearing role, whether done by men or women.   Will same-sex marriage further challenge “the gender roles dictated by the central marital trope of conjugality” (p. 76) and if so, what will that mean for child custody and support decision-making?

3. Will opening marriage to untraditional couples derail efforts to decouple state-conferred benefits from marital status?  As we noted, egalitarian marriage has become the province of the financially independent and the emotionally mature, and marriage is now beyond the reach of a good part of the population, whether straight or gay.  This leaves open the question whether marriage should continue be a basis for the extension of benefits such as health insurance or the ability to marshal the resources critical to childrearing.

The book masterfully sets the basis for a reconsideration of what the marriage equality fight was really about and what marriage means going forward.

June Carbone is the Robina Chair of Law, Science and Technology,  University of Minnesota Law School. You can reach her by e-mail at

 Naomi Cahn is the Justice Anthony M. Kennedy Distinguished Professor of Law and Nancy L. Buc ’69 Research Professor in Democracy and Equity, University of Virginia School of Law. You can reach her by e-mail at

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