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Some Complicating Thoughts on Same-Sex Marriage

Nitya Duclos*
In this article, Professor Duclos applies an anti-essentialist approach to the question of lesbian and gay marriage to explore the many complex issues underlying the question and to caution those seeking recognition of same-sex, marriage to consider the negative as well as the positive ramifications of winning such recognition. By showing that proponents of same-sex marriage often presuppose a vague (and, usually, white, male, middle-class, and able-bodied) conception of the universal "same-sex family," Professor Duclos demonstrates that recognition of same-sex marriage may well produce unexpected negative resultsfor actual lesbians and gay men. She concludes that those seeking gay rights would better serve the lesbian and gay community by continuing efforts to gain additional rights on a wide range of related issues rather than pinning all their hopes on gaining access to the institution of marriage, which has had, at best, a problematical history for those society has deemed "inessential."
I.
INITIAL THOUGHTS
When I teach the opposite-sex' requirement in marriage law to my family law classes, I argue that a same-sex marriage bar makes no sense. I talk about the discrimination that lesbians and gay men experience currently in Canadian society and touch on some of its historical antecedents. I present the opposite-sex requirement as facially discriminatory and offensive to the basic liberal principles that underlie our human rights legislation and our Constitution. I say, essentially, that excluding lesbians and
* Assistant Professor of Law, University of British Columbia. I would like to thank Ruth Colker, Bill Flanagan, Sandy Goundry, Rob Grant, Marlee Kline, Bruce MacDougall, and Martha Minow for their very helpful comments. I am also grateful to the participants in the Law & Sexuality Sympo-
sium The Family in the 1990s: An Exploration of Lesbian and Gay Rights, held at Tulane University School of Law, Oct. 5, 1990. 1. The use of "opposite" in this context offers an interesting insight into our conceptualization of heterosexual relationships. The Oxford American Dictionary defines "opposite" as follows: "1. having a position on the other or farther side, facing. 2. of a contrary kind, as different as possible from; the opposite sex, men in relation to women or vice versa; they traveled in opposite directions, moving away from or toward each other." OXFORD AMERICAN DICTIONARY 468 (1980).
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gay men from marriage is bad. No one in my class disagrees.' We move on to the next topic. What I say about legal treatment of same-sex marriage accords with much of the legal literature on the subject: Canadian and American legal academics have made the point I make in class;' Canadian and American judges have expressed the opposite view.4 Somewhere in this dichotomous construction of same-sex marriage as either good or bad, I sense that something important is being missed, that the issues are actually a lot more complex than they appear. Part of the reason for my concern derives from my experience as a feminist in the area of family law. For many years, family law has been a site of feminist struggle. Recognizing that laws regulating families profoundly affect the material conditions of women's lives, feminists have advocated numerous legal reforms in this area and have seen a number of them enacted into law. Yet these feminist successes have been partial and contradictory: while there has been some progress, many women's lives have not changed very much. Contact with the family law system still greatly increases the likelihood of poverty for an overwhelming number of women.' The debates continue over the causes of these failures, as feminists disagree with each other and with other family law academics over
2. When the papers come in at the end of the course, however, I discover that the students were not as unanimous as I had thought. One person condemns same-sex marriage as violative of the social order because it is "unnatural." 3. See, e.g., Arnold Bruner, Sexual Orientation and Equality Rights in EQUAI.ITY RIGHTS AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS 457, 468-77 (Anne F. Bayefsky & Mary Eberts eds. 1985); Alissa Friedman, The Necessity for State Recognition of Same-Sex Marriage:Constitutional Requirements and Evolving Notions of Family, 3 BERKELEY WOMEN'S L.J. 134 (198788); Bruce Ryder, Equality Rights and Sexual Orientation:Confronting Heterosexual Family Privilege, 9 CAN. J. FAM. L. 39 (1990); HARVARD LAW REVIEW, SEXUAL. ORIENTATION AND THE LAW 93-113 (1990); Comment, The Tie That Binds: Recognizing Privacy and the Family Commitments of Same-Sex Couples, 23 Lo'. L.A.L. REV. 1055 (1990) (authored by David Link). 4. For some cases in which judges have denied claims by same-sex couples for legal recognition of their relationships as marriages, see North v. Matheson, 52 D.L.R. (3d) 280 (Man. Co. Ct. 1974); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972); and Singer v. Hara, II Wash. App. 247, 522 P.2d 1187 (1974). Canadian cases in which judges have denied claims for spousal or family benefits include Andrews v. Ontario (Minister of Health), 64 O.R. (2d) 258 (1988); Re Carleton University and C.U.P.E., Local 2424, 35 L.A.C. (3d) 96 (Ont. Arb. Bd. 1988); and Vogel v. Manitoba, 4 C.H.R.R. D/1654 (Man. Bd. Adj. 1983). 5. Perhaps the most often recited figure is Lenore Weitzman's conclusion from a 1978 study of families in California that post-divorce women's average standard of living declines by 73% whereas men's standard of living rises by 42%. See Lenore J. Weitzman, The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards, 28 UCLA L. REV. 1181, 1251 (1980-81). But see Herbert Jacob, FaultingNo-Fault, 1986 Am. B. FOUND. RES. J. 773, passim; HERBERT JACOB, SII.ENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED STATES (1988). In 1986, 13% of all families were lone parent families and 80% of these families were headed by women. The highest incidence of low income by family type in Canada is found in female-headed lone parent families: 42% spend over 58% of their income on food, shelter, and clothing and are
considered to be in straightened circumstances. STATISTICS CANADA, THE FAMILY IN CANADA: SE.ECTED HIGHLIGHTS 11-12, 29, & 31 (1989). The National Council of Welfare has reported that
well-educated women are increasingly reluctant to marry and to have children because of adverse economic consequences. The Council's study found that children, marriage breakdown, and widowHeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 32 1991
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COMPLICATING THOUGHTS
the pros and cons of such matters as mediation versus the courts,' fault
versus no-fault divorce," sole versus joint custody," and long-term alimony versus limited spousal support.9 Common to all of these proposals is a quest for a universal solution, premised on the belief that, if we could only.get it right, there can be a universal family law that works fairly and equitably for everyone. But the success of a universal family law depends on the existence of a paradigmatic family upon which the law is based. Families must share enough common features for universal laws to operate in roughly the same way for all those to whom they apply. If there is an insufficient "essence" of family, if there is no governing norm against which all families can fairly be measured, then family laws will only tend to work well for those families the drafters had in mind. The diversity of family forms in Canadian society is well-documented in social science literature. 0 So, too, is the fact that current family laws are premised upon a heterosexually identified two-parent, middle-class," propertied, largely secular, "nuclear" or "traditional" family that is rapidly becoming unrepresentative of Canadian families."2 What this means
hood are major causes of women's poverty. Motherhood Too Costly, Report Warns, Globe & Mail, Aug. 19, 1990, at A5. 6. Martha Bailey and Martha Shaffer have criticized the pro-mediation movement from feminist perspectives. See Martha J. Bailey, Unpacking the "Rational Alternative": A Critical Review of Family Mediation, 8 CAN. J. FAM. L. 61 (1989); Martha Shaffer, Divorce Mediation: A Feminist Perspective, 46 U. TORONTO FAC. L. REV. 162 (1988). Barbara Landau is one of the movement's staunch defenders, also from a feminist perspective. See Barbara Landau, Mediation Article Elicits Response, 9 CAN. J. FAM. L. 193 (1990). 7. Herma Hill Kay was one of the leading figures in the "no-fault" movement. See Herma Hill Kay, Making Marriage and Divorce Safe For Women (Book Review), 60 CALIF. L. REV. 1683 (1972). More recently, other feminists have suggested that removal of fault grounds from divorce statutes seriously reduced the bargaining power of the legally innocent spouse, which had disastrous economic consequences for many women. See LENORE J. WEITZMAN, THE DIVORCE REVOLUTION:
THE UNEXPECTED AMERICA
358-61 (1985);
SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 81-82
(1989). 8. Joseph Goldstein, Anna Freud, and Albert Solnit are leading proponents of a strong sole caretaker rule. See JOSEPH GOLDSTEIN, ANNA FREUD, & ALBERT J. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1973). Jay Folberg advocates joint custody. See Jay Folberg, Joint Custody in FAMILY LAW: DIMENSIONS OF JUSTICE 185, 192 (Rosalie S. Abella & Claire L'Heureux-DubE eds. 1983). More recently, writers such as Sheila Holmes and Richard Neely have criticized joint custody presumptions in favor-of a primary caretaker presumption. See Sheila M. Holmes, Imposed Joint Legal Custody: Children's Interests or ParentalRights? 45 U. TORONTO FAc. L. REV. 300 (1987); Richard Neely, The Primary CaretakerParent Rule: Child Custody and the Dynamics of Greed, 3 YALE L. & POL'Y REV. 168 (1984-85). 9. Compare, e.g., Ruth L. Deech, The Principles of Maintenance, 7 FAM. L. 229 (1977) (arguing spousal support should be virtually nonexistent in order to promote women's equality) with Katherine O'Donovan, The Principle of Maintenance:An Alternative View, 8 FAM. L. 180 (1978) (arguing spousal support is necessary for women to achieve economic equality). 10. See, e.g., MARGRIT EICHLER, FAMILIES IN CANADA TODAY: RECENT CHANGES AND THEIR POLICY CONSEQUENCES (2nd ed. 1988). 11. "Middle-class" is used here as a class designation that flows from the socioeconomic status of the male "head of household." 12. See M. EICHLER, supra note 10. In 1986, 59.6% of "families" (definition excludes same-sex couples) were composed of husband, wife, with child(ren) at home; however, 32.7% of families had no children living at home and 12.7% were single-parent families. Families without children at home and HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 33 1991
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is that our family laws are increasingly inadequate to the families they govern. Reforms that attempt to modify current laws by "adding on" newly recognized family forms tend to assimilate these new forms to the core model of the "traditional" family in order to maintain uniformity in the law. Some families still get left out-and the families that are added in may be pushed into shapes not of their own choosing.13 If an approach premised on "the" family is abandoned, legal reform can take truly new directions. Freed from the necessity of one law for all, the law might reflect differences between families through different laws. For example, divorce for childless couples might be a simple matter of registration whereas divorcing couples with children might be subject to judicial scrutiny. Not all divorcing spouses may have a right to support. 4 Advocating reforms in the absence of a presumption of universality, however, means that different questions must be asked: Which families are the subject of the discussion? What is it about these families in particular that requires legal regulation? These are not questions that admit of singleanswer solutions or broadly drafted statutes. Questions like these require a much narrower, more concrete focus for discussion, pointing to particular rather than "broad brush" policy responses. The "anti-essentialist" stance I have just described in the context of family law, which raises questions about the utility of universal norms as a basis for laws governing families, strikes me as something that is missing from the debate about same-sex marriage both in much of the literature I have seen and in my classroom. In arguing that a same-sex marriage bar is bad (or good), we implicitly assume a universal same-sex family. Our views about the essential nature of that hypothetical family determine our various positions in the same-sex marriage debate. Just as there is no basic heterosexual family form that possesses sufficient characteristics to adequately ground a universal family law for heterosexual couples, there is certainly no fundamental homosexual family from which we can make a general declaration that same-sex marriage is a good or a bad thing. Rather than search for such an "essence" of the homosexual family-or hide assumptions about this family underneath layers of reasons why the
single-parent families have been increasing at a much greater rate than families with children. Women are giving birth to increasingly few children: the average number of children per family is now closer to one than two. Only 32% of all families own their homes free of encumbrance; 37% do not own homes. See STATISTICS CANADA, supra note 5. 13. The current trend in family law to treat unmarried heterosexual cohabitants as if they were married is an example. 14. Some family law writers, frustrated by the law's ineffectiveness, have suggested such solutions. Mary Ann Glendon, for example, has suggested divorce should be different for couples with children than it is for couples without children. See M.A. GLENDON, supra note 7, at 94-103. Ruth Deech advocates spousal support for older women who have worked in the home as an exception to her general rule of no spousal support. See Deech, supra note 9, at 233. So far, however, these suggestions have been exceptions; the assumption that family laws should generally be the same for all families has not been seriously challenged. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 34 1991
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law should (or should not) recognize same-sex marriage-I believe the issue should be approached from an anti-essentialist perspective. In this essay, I will briefly describe some of the salient features of antiessentialism as it has been articulated in the context of feminist theory. 15 I will then sketch out what an anti-essentialist approach to same-sex marriage might look like. My (anti-essentialist) objective is not to conclude by determining that same-sex marfiage is, on the whole, a good or bad thing, but to complicate the question to the point where it is clear that good/bad is not a sufficient range of answers. Many able writers have presented strong arguments in favor of recognition of a right to marry for lesbian and gay couples. In this process, however, less has been written about possible negative aspects of the institution of marriage for some lesbian and gay people. By adopting an anti-essentialist perspective in this paper, I want to explore this latter set of considerations, not to conclude that same-sex marriage is a bad idea, but to show that an anti-essentialist approach can offer lesbian and gay communities debating the "marriage question" a fuller appreciation of the complexities of the issue. II.
ANTI-ESSENTIALISM IN FEMINIST THINKING
Feminist anti-essentialist thinking developed out of feminist -theories that exposed relations between women and men as relationships of oppression in which men exercised dominance over women.1" These theories revealed men's power over women as a hierarchy of gender dominance so deeply and pervasively entrenched in social institutions, including the legal system, that it seems natural and inevitable. Within this system, men are the norm; women sometimes conform to the norm and sometimes they
15. A number of different terms have been used to describe the theoretical approach I describe as anti-essentialism. For example, Angela P. Harris uses "post-essentialism" in Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 610 (1990); Seyla Benhabib uses "interactive universalism" in The Generalized and the Concrete Other: The Kohlberg-Gilligan Controversy and Feminist Theory in FEMINISM AS CRITIQUE: ON THE POLITICS OF GENDER 77, 81 (Seyla Benhabib & Drucilla Cornell eds. 1987); and Caroline Ramazanoglu uses "new wave feminism" in FEMINISM AND THE CorrrRADICT-IoNs OF OPPRESSION 5 (1989). In an earlier Article, I used the term "renegotiated feminism," because I wanted to underscore that talking with others, perceiving their multiple identities, and working through common links between them lies at the heart of this theory. See Nitya Duclos, Lessons of Difference: Feminist Theory on Cultural Diversity, 38 BUFFALO L. REV. 325 (1990). In this essay, I use the term "anti-essentialism," because it captures what must be rejected in order for this theoretical stance to be taken. Anti-essentialism is not restricted to feminist theory. Stanley Fish's "anti-foundationalism".and Richard Rorty's "neo-pragmatism" take philosophical objection to essentialist theorizing. These writers diverge from feminists, however, in their (lack of) assessment of the political implications of their
theories. See STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (1989); RICHARD RORTY, CONSEQUENCES OF PRAGMATISM (ESSAYS: 1972-1980) (1982); Richard Rorty, Anti-Essentialism in General: The Number 17 as a Modelfor Reality, paper presented at University of Toronto Legal Theory
Workshop, Jan. 12, 1990. 16. Caroline Ramazanoglu describes this evolution in FEMINISM AND THE CONTRADICTIONS OF
OPPRESSION (1989). See also ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF ExCLUSION IN FEMINIST THOUGHT (1988).
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diverge from it. Divergence is always measured in terms of distance from the norm; the centrality of the norm itself is unquestioned. 7 These feminist insights exposed hitherto universal social and legal norms as reflections of male power and perspective, opening seemingly objective rules to feminist allegations that the institutions of society are designed by and for men in ways that preserve the privileges and power that attach to their gender simply by appearing neutral." This led feminist thinkers to the conclusion that it is the exclusion of women as social norm generators that makes it impossible to achieve equality for women: Men possess the power to make society from their perspective, to substitute what is male for what is human.' 9 Women are stuck with trying to be the same or different; they never get to make the rules. While some feminist academics were developing a theory of gender oppression as the product of male essentialism (that is, the assumption that men are the essence of the human), other feminists began to turn these anti-essentialist insights inward, examining and exposing the existence of intra-gender oppression.20 Just as men have been the dominant gender group in society, white, middle-class women have been the dominant group within feminism. Just as men exercise power over women on the basis of their position within the socially constructed hierarchy of gender, women exercise power over women on the basis of other, equally fundamental and hierarchical, differentiating characteristics such as race, class, culture, sexual identity, disability, and age. The experience of gender oppression has not sensitized otherwise privileged 2 ' women to oppression in these forms. Instead, these women have entrenched themselves as the feminist norm, constructing around themselves a model of gender oppression
17. [M]an has become the measure of all things. Under the sameness standard, women are measured according to our correspondence with man, our equality judged by our proximity to his measure. Under the difference standard, we are measured according to our lack of correspondence with him, our womanhood judged by our distance from his measure . . . Think about it like those anatomy models in medical school. A male body is the human body; all those extra things women have are studied in ob/gyn. CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW 34 (1987). 18. See, e.g., Martha Minow, The Supreme Court, 1986 Term-Foreword:Justice Engendered,
101 HARV. L. REV. 10, passim (1987).
19. Robin West makes this point in the context of jurisprudential theory. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, passim (1988). 20. See, e.g., BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM (1981); AUDRE
LORDE, SISTER OUTSIDER (1984); ALL THE WOMEN ARE WHITE, ALL THE BLACKS ARE MEN, BUT
SOME OF Us ARE BRAVE (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds. 1982); Hazel V. Carby, White Woman Listen! Black Feminism and the Boundaries of Sisterhood in THE EMPIRE STRIKES BACK: RACE AND RACISM IN 70s BRITAIN 212 (Centre for Contemporary Cultural Standards ed. 1982). 21. I use the adjective "privileged" to describe the mostly white, middle-class, urban, professional, heterosexual, adult (but not elderly), able-bodied, loosely Christian women who experience oppression on the basis of gender, but who also form part of the dominant group in society on the basis of most other differentiating characteristics.
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that is actually gender oppression coupled with race, class, and other privilege.22 Privileged women's feminism has excluded and oppressed women who do not fit this mainstream mold both in its theory and in its practice. Feminist theory as it has been practiced by privileged feminists fails to perceive that differences between women affect their experiences of gender oppression, taking for granted that the pressing concerns of privileged women are as central to the lives of less privileged women and assuming gender to be the primary (if not the sole) site of oppression in all women's lives.2 3 The feminist practice that emerges from this essentialist foundation is similarly limited and incomplete. Not only are some of the "victories" celebrated by the Canadian women's movement of little relevance to women who do not conform to the dominant feminist norm,2 4 but these supposedly feminist gains may have actually hurt nonconforming
women.
25
With the unpleasant realization that privileged feminism suffers from the same sort of entrenched dominance that feminists have criticized in men came the suspicion that any attempt to generalize hides similarly exclusive and oppressive norms. Instead, anti-essentialist feminist theorists argue, we must begin to carry on feminist practice and theory in new ways that avoid the perils of simplistic universals and unquestioned
22. The problem with the "story of man" was that women couldn't recognize themselves in it. So those who produce the "story of woman" want to make sure they appear in it. The best way to ensure that is to be the story-teller . . . . Essentialism works well in behalf of these aims, aims that subvert the very process by which women might come to see where and how they wish to make a common cause. For essentialism invites me to take what I understand to be true of me "as a woman" for some golden nugget of womanness all women have as women; and it makes the participation of other women inessential to the production of the story. How lovely: the many turn out to be one, and the one that they are is me. E.V. SPELMAN, supra note 16, at 159. 23. Marlee Kline demonstrates how contemporary Canadian feminist legal theory suffers from these problems. See Marlee Kline, Race, Racism, and Feminist Legal Theory, 12 HARV. WOMEN'S L.J. 115 (1989). For a similar critique of American feminist legal theory, see Harris, supra note 15. For critiques of feminist theory in general, see C. RAMAZANOGLU, supra note 15, and E.V. SPELMAN, supra note 16. 24. For example, the feminist lobbying effort in Ontario that led to the passage of the Family Law Act, Ont. Rev. Stat. ch. 4 (1986), providing for presumptive equal division of virtually all property upon marital separation, was of little relevance to the many women involved in lesbian relationships or in relationships in which there is little or no property to divide. See New Law Would Divide MarriageAssets in 0, Globe & Mail, June 5, 1985, at M3; Divorce: New Rules in an Old Tug of War, Globe & Mail, June 7, 1986, at A10. 25. A case in point is Symes v. Canada, I C.T.C. 476 (F.C.T.D. 1989), which was publicly acclaimed as a victory for "women's rights." The case involved a woman partner (a prominent feminist) in a large Toronto law firm who argued that the Income Tax Act discriminated on the basis of sex, because it prohibited the deduction of nannies' salaries as business expenses. The court agreed and allowed Symes to deduct her nanny's salary as a business expense. Not only is the assumption that this case benefits women in general seriously erroneous, but precisely the opposite conclusion is more likely. The case was regarded by activists as a serious setback in the struggle for adequate daycare (an issue of much greater concern to most women than a nanny deduction); further, the case directly legitimized the exploitation of domestic workers at the hands of upper-class women. See Nanny Tax Deduction Seen Blow to Child Care, Vancouver Sun, May 17, 1989, at A8, col. 1. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 37 1991
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norms.2" The problem is to figure out how to do this. What would an anti-essentialist feminist theory look like? How do you theorize without generalizations and abstractions? How can a theory or a political strategy take account of all of our many differences and all of the ways they affect our experiences of any particular issue without becoming paralyzed by particularity? Ironically, it is easier to describe an anti-essentialist perspective in general, theoretical terms2" than it is to specify what such an approach requires in concrete and useful ways. In general, then, the "essence" of anti-essentialism is that differences really matter: [T]he way to begin to resolve issues of difference without oppressing those who are labelled different is to notice them. The challenge is not to see our own reflections in their eyes, or to imagine what we would want if we were they, but actually to pay attention to what they are saying about who they are. If this is to be done, quests for
essences and identity, for simple, universal rules . . . grounded in a fixed and finite . . . set of ideals must be relinquished.2"
Respect for the many differences between us means that there are no easy answers. Yet an anti-essentialist approach is neither nihilistic nor solipsistic. Giving difference its due does not mean that we cannot generalize or speak for others-empathy and imagination are important but they are not everything. It does mean curbing our great fondness for comprehensive theories, conceptual simplicity, and grand finales, and settling for more modest, partial solutions. It also means that those of us who have the privilege to speak and to be heard must do so responsibly, focusing not so much on our power as a license to speak for others, but as imposing a duty to speak with them-a process that can lead to tentative conclusions about common concerns. Conclusions, of course, must be tested by returning with them to our diverse communities not only in theory but in practice. Anti-essentialism requires us to question our perspectives and our norms, to move away from assumptions and to find out what is really going on. A much more useful understanding of the possibilities of antiessentialism can be gained, however, by seeing it in action. In the remain26. See, e.g., C. RAMAZANOGLU, supra note 15; E.V. SPEL.MAN, supra note 16; Benhabib, supra note 15; Kline, supra note 23. 27. For example, I have described anti-essentialist theory as: willing to adopt heuristic approaches [that) enhance imaginative potential and move away from the fetters of formal justification and universal proofs. It seeks an intimate relationship with feminist practice because it conceptualizes the relation between theory and practice not hierarchically but holistically, each continuously directing the development of the other and so progressing together. Duclos, supra note 15, at 360. Angela Harris identifies three contributions black women make to feminist anti-essentialism: "[The recognition of a self that is multiplicitous, not unitary; the recognition that differences are always relational rather than inherent; and the recognition that wholeness and commonality are acts of will and creativity, rather than passive discovery." Harris, supra note 15, at 608. 28. Duclos, supra note 15, at 380. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 38 1991
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der of this essay, I will explore the potential of applying an anti-essentialist framework to a consideration of same-sex marriage.29
III. ANTI-ESSENTIALIST EXPLORATIONS OF SAME-SEX MARRIAGE
My anti-essentialist approach proceeds in three stages.3 0 First, I think it is important to shift perspective, to formulate the issue itself in a way that exposes and questions the dominant perspective from the standpoint of the group (or groups) with which the inquirer is concerned. In this way, the framework within which the inquiry is conducted is made a part of it and becomes just as subject to challenge. Next, it is important to engage in a process analogous to the intra-gender critique of feminism. That is, the many differences within the groups whose perspective has been adopted need to be explored, particularly as they may bear on group members' experience of the issue. The issue itself needs to be deconstructed and analyzed from many angles, especially in relation to the various ways in which it affects different people. In this stage, the goal is to embrace the issue in all its complexity, which entails acceptance of its contradictory effects on different people.3" The urge to simplify must be resisted here. The final stage is the least determinate. It consists of trying to identify some common concerns of different groups that emerge from their many differences and to direct reform efforts in those directions. If no consensus can be found, an anti-essentialist approach would suggest that, in making the inevitable decisions about what to do in concrete situations, the potential consequences for lots of different people (instead of only a few) be fully appreciated. Anti-essentialism does not (and cannot) promise universally beneficial solutions to any particular problem; it does
29. This essay does not attempt a comprehensive analysis of same-sex marriage. Such an aspiration would be very odd for someone who persistently doubts claims of comprehensiveness. By exploring how an analysis of same-sex marriage might look different from an anti-essentialist standpoint, I wish to convey a sense of the intriguing complexities of both same-sex marriage and anti-essentialism. For an insightful anti-essentialist analysis of the construction of lesbian relationships as families, see Didi Herman, Are We Family? Lesbian Rights and Women's Liberation, 28 OSGOODE HALL L.J. 789 (1990). 30. Of course, this framework is subject to revision. While I believe that consciousness of perspective and complexity are integral elements of an anti-essentialist standpoint and that they should precede but not preclude identification of possible resolutions, I do not suggest that they are the exclusive hallmarks of anti-essentialist analysis, nor that they should take the same form in every context. 31. This complexity necessarily includes an appreciation of the historical context of the issue, that is, the history of the people involved and the historical specificity of the institution under discussion. Of course, in exploring these histories one must be careful not to slip back into the dominant group's version of history and to seek out historical accounts from various perspectives. In the context of this issue, I have found feminist and Marxist critiques that regard the evolution of the family and marriage as instrumental to the maintenance of capitalist, patriarchal social forms, and histories of lesbians andgay men in Canadian and American society to be important resources. See, e.g., MICHLLE BARRETT & MARY McI'rrosH, THE ANrI-SOCIAL FAMILY (1982); GARY KINSMAN, THE REGULATION OF DESIRE: SEXUALITY IN CANADA (1987); CAROL SMART, THE TIES THAT
BIND: LAW, MARRIAGE AND THE REPRODUCTION OF PATRIARCHAL RELATIONS (1984); ELI ZA-
RETSKY, CAPITALISM, THE FAMILY, AND PERSONAL LIFE (1976); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983).
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try to ensure that hard decisions are made responsibly, with everyone in mind. Throughout this process, the inquirer cannot hide behind a cloak of authorial omnipotence. One of the first lessons of anti-essentialism (and modern physics) 2 is that there is no such thing as an outside observer. It is important to reflect upon your own location in relation to the issue and the people under discussion, because your perspective necessarily affects the way you perceive and the way you are perceived by others. This may or may not involve "coming out" to your audience, something that is necessarily more or less voluntary in different contexts.
3
Inserting a footnote
in a paper (or writing it into the text) about your race, class, gender, and sexual orientation is one way to acknowledge your location in relation to your subject. On balance, I am not sure that this is always a good thing. The reader can gain important information with which to assess the work by knowing something about the writer. When one reads an article written by a friend, the writing is interpreted in light of a sophisticated understanding of the person, as a member of certain groups and as a particular individual. Relevant personal experience rightly adds weight to an author's opinions. However, a brief categorical summary of personal characteristics can also be very misleading. Each "standard" category (race, gender, etc.) contains a series of embedded assumptions about that category as well as others. For example, if I describe myself as "straight," readers would tend to assume that I have never been in a same-sex relationship and have no interest in such a relationship in the future. Perhaps other inferences about my sexual and marital history would be made. It would also likely be assumed, in the absence of further clarification, that I am white, male (if my name is ambiguous), middle class, able-bodied, and so on. All of these inferences become the lens through which the writing is read. While it is natural and probably inevitable that readers construct a picture of the author from his or her work, I worry about encouraging prejudgment of the work because of known or assumed characteristics of the author. To what extent our thoughts are the product of our biographies is a difficult and perhaps unresolvable question. Particularly when the biography is going to be incomplete and inaccurate, the decision about what to reveal in one's writing is important and should be undertaken
with care.
32.
34
See Laurence H. Tribe, The Curvature of ConstitutionalSpace: What Lawyers Can Learn
from Modern Physics, 103 HARV. L. REV. 1, 17-20 (1989).
33. Some differentiating characteristics are more or less visible in different contexts. Gender is usually revealed by putting your name on paper; ethnic origin can be read from a name (although names can be misleading). Membership in a "visible minority" is often (but not always) visible at an oral presentation; sexual orientation, disability, and religion are often more hidden. 34. A trend toward treating declarations of membership in oppressed groups, in particular, as sufficient indication of the merit of the work also concerns me. It would be wrong, I think, to declare myself as a person of color in order to take advantage of stereotypical assumptions embedded in that category-which might not be my experiences-and so implicitly claim for my work a greater legitiHeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 40 1991
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I think that it is most important for an author to try to indicate to the reader, either directly or indirectly, what experiences or perspectives she or he feels are especially important to the particular piece of writing. I bring to this essay my experiences of teaching, writing, and thinking about marriage and divorce in my capacity -as a legal academic, which have been shaped by my general and personal experiences with marriage and divorce as a heterosexual, first-generation East Indian woman raised primarily in Canada. I wish to contribute to the debates about same-sex marriage within and outside lesbian and gay communities by locating myself as an outsider from a lesbian or gay perspective, but as an insider from a marriage perspective.
A. Shifting Perspectives
The greater part of the answer to a' question is found in the way that the question itself is phrased. Questions tend to get phrased in conformity with dominant ideology, in ways that take for granted the existing social order and its institutions. 5 All of us unconsciously assume the existence of the norms into which we have been socialized.3 6 However, to the extent we belong to groups that have been ill-treated by the dominant group in a society, we are not likely to be understood from dominant perspectives nor are our needs likely to be met by institutions that were not designed for us. We should therefore resist our socialized tendencies to pose questions 3" in ways that accept the dominant framework as natural and inevitable. Instead, we need to attempt to place the perspectives of oppressed groups at the center and measure existing institutions by their standards. 8 Too often when writing or talking about same-sex marriage, the basic question seems to be something like, "Should homosexuals be allowed to
macy than it has. Of course, it is just as wrong to obscure one's membership in a dominant group by writing so as to convey the impression that one belongs to a particular minority. I would also hate to see encapsulated personal descriptions become entrenched as a formal requirement of academic writing, fitting in somewhere after the author's professional position and before the acknowledgements in the ubiquitous "first footnote." 35. Roberto Unger argues that we must struggle against this tendency; we need to develop a transformative politics in order to be able to change entrenched patterns of oppression. See generally
ROBERTO MANGABEIRA UNGER, FALSE NECEssITY: ANTI-NECESSITARIAN SERVICE OF RADICAL DEMOCRACY THEORY). SOCIAL THEORY IN THE
(1987) (Part I of POLITICS, A
WORK IN CONSTRUCTIVE SOCIAL
36. Socialized acceptance of norms runs very deep even among people who have resisted them. In discussing this point with a friend, she offered an example: How often do lesbians refer to their lover's mother as their "mother-in-law"? Hidden in the term is a reflexive acceptance of law as constituting the relationship, even when it does not. 37. This resistance is especially hard for lawyers who are indoctrinated into conservative and privileged ways of thinking. As Rhonda Copelon has said: "Law narrows. And law channels. And law takes our. liberatory visions and makes them smaller." Remarks of Professor Rhonda Copelon, Review of Law and Social Change Symposium (Feb. 22, 1986), quoted in Debra Rothberg, Preface to Sex, Politics, and the Law: Lesbians and Gay Men Take the Offensive Symposium, 14 N.Y.U. REV. L. & Soc. CHANGE 891, 893 (1986). 38. "While rejecting the categories that the ruling social agencies have imposed on us, we must maintain our ability to name our own experiences." G. KINSWiAN, supra note 31, at 220. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 41 1991
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enter a legal marriage?" 9 The hidden subject of this sentence is the state; it gets to give or withhold permission. Lesbians and gay men get lumped together into "homosexuals," an abstract and over-simplified sexualized label. Marriage is reified; it assumes a shape fixed by ideological and legal norms that "homosexuals" may or may not fit; the complexity and dynamism of this longstanding legal relationship is collapsed into the point of entry (marrying). The question is posed from the dominant perspective; the yes/no answer it commands presupposes a singularity (or essence) in the categories "homosexual" and "marriage" that does not actually exist. This is not to say that the question does not need to be posed from the dominant perspective. Clearly, framing the issue in those terms is important, because the dominant perspective constitutes the framework within which the answers to questions acquire the force of law. And, in my view, the answer to the dominant perspective question is obviously "yes." 40 It is a glaring injustice to preclude lesbian women and gay men from marrying their partners. But to take this answer as the whole answer is to accept the dominant perspective as the only perspective. Given that a same-sex marriage bar is a bad thing for the state to impose, lesbians and gay men still need to ask whether marriage is a good thing for them to seek.4" Shifting perspectives means changing the subject of the sentence and opening up the field of responses. We could ask something like, "Will lesbians and gay men or some of them benefit from legal recognition and regulation of their relationships through the marriage system?" This puts lesbians and gay men front and center as people with whom and for whom we are concerned. It specifies that legal recognition is one form of recognition and that the issue involves the regulation of those relationships by law. It expressly removes from consideration any doubt that lesbians and gay men have relationships-something the earlier question left open.42 And it asserts that marriage is a system of legal and social rules, not elemental but socially constructed and open to change.
39. Arnold Bruner asks, "What is the rationale for not permitting homosexuals to marry?" Bruner, supra note 3, at 473. Other writers implicitly accept that the existing institution of marriage comes as a package and conclude that it will be a good thing for "homosexuals" or lesbians and gay men without explaining how it is likely to affect the many different people within those communities. See Friedman, supra note 3; HARVARD LAW REVIEW, supra note 3; Comment, supra note 3. 40. I have elsewhere taken this position, as have numerous others. See Nitya Duclos, An Argument for Legal Recognition of Same Sex Marriage in FAMILY LAW CASES AND MATERIALS 167 (Nitya Duclos ed. 1990) (unpublished, on file with author); see also authors cited supra note 3. 41. Analogously, it is clearly wrong for the Canadian government, in asserting the power to define who is and who is not an "Indian" for the purpose of various benefits and burdens flowing from that status, to exclude some people who see themselves and are recognized by native communities as Indians. Even so, inclusion in the status "Indian," which implicitly entails some acceptance of a patriarchal relationship with the Canadian government, may not necessarily be a good thing from a First Nations' perspective. 42. Many judges have wasted considerable ink over this issue, and it is one of the more offensive arguments against legal recognition of same-sex marriage. See, e.g., Constant A. v. Paul C.A., 344 Pa. Super. 49, 57-66, 496 A.2d 1, 5-10 (1985). HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 42 1991
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Embracing Complexity
The shift from "homosexual" to "lesbians and gay men" is a first step. Expanding from one category to two is hardly sufficient, however. Neither "the" lesbian community nor "the" gay male community exist any more than "the" homosexual community or "the" family. These are not homogeneous groups, and being a lesbian or a gay man does not automatically confer representative authority for the whole group of lesbians and/or gay men. Responsibility to these communities requires appreciation of the great diversity within lesbian and gay communities.45 We need to call to mind as many of the complex ways in which lesbians and gay men differ as possible, since these differences affect not only their views and expectations but also their likely experiences of marriage and its corollary, divorce. Paying attention to only relatively standard categories of difference, namely, race, class, and gender, creates a small wealth of differences." Differences such as sexual identity,45 culture, religion, age, and disability substantially increase the degree of diversity, as do education and political affiliations. There are also other differentiating characteristics that, although less universally recognized as such, are especially important in the context of this issue. Consider, for example: Is the person single or involved in a relationship? If in a relationship, what kind of relationship is it and how does the person feel about it (about to break up? just beginning?)?
David Link argues that the U.S. Supreme Court considers only heterosexual sexual relationships to be positive intimate relationships; same-sex relationships are seen as "non-relational sexual activity." Comment, supra note 3, at 1079-80. 43. It also requires confronting the ways in which some lesbians and gay men oppress others. Makeda Silvera points out that many white lesbian and gay organizations have not confronted their own racism. See Makeda Silvera, Man Royals and Sodomites: Some Thoughts on the Invisibility of Afro-CaribbeanLesbians in LESBIANS IN CANADA 48, 59 (Sharon Dale Stone ed. 1990) [hereinafter LESBIANS IN CANADA]. Joanne Doucette writes about the stereotypes inflicted upon disabled lesbians both outside and within lesbian and gay communities. See Joanne Doucette, Redefining Difference: Disabled Lesbians Resist in LESBIANS IN CANADA 61. 44. The differences between lesbians and gay men run deep: Lesbians are women. This point is crucial for understanding lesbian existence within a heterosexual, patriarchal context. As women, lesbians do not have access to male privilege. No matter how much lesbians might reject traditional notions of femininity (and not all do), they do not have the same access to well-paying jobs that men have .... Sharon Dale Stone, Introduction: Defining the Context in LESBIANS IN CANADA 9. In some First Nations communities, cross-dressing women and men are treated as members of a third gender. G. KINSMAN, supra note 31, at 71. Since "race" is more frequently used in its social rather than its biological sense in legal contexts, racial categories should not be confined to Oriental/Black/Caucasian, but should include and differentiate between all visible minority groups. Class divisions are not confined to working class and middle class, but are more specific and range across a broader spectrum. Thus, these three lines of differentiation specify multiple different identities. 45. There are many sub-communities of sexual identity within lesbian and gay communities. G. KINSMAN, supra note 31, at 189-90. For example, it is important not to overlook those who identify themselves as bisexual. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 43 1991
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" Is the person a parent, including genetic parents, gestational parents, and functional parents? If a parent, does the person live alone with his or her child(ren) or with a co-parent? Does the parent have legal custody of or access to the child(ren)? What is the age(s) and sex(es) of the child(ren)? What kind of relationship does the parent have with the child(ren)?46 o Is or has the person been legally married? If married, has he or she ever gone through a legal divorce? How does the person feel about these experiences? o In what kind of community does the person live? What are his or her relationships with parents, siblings, and other family members? What kind of support network does the person have? Obviously, the list could go on and on. Facing this multiplicity of differences is difficult, for it is clearly impossible either to ascertain each constituency's views on the issue or to analyze the likely impact of legal recognition of their relationship(s). The purpose is not to paralyze reform or to defeat activist efforts, but to stimulate a greater awareness of the need to think about and talk to (some) others and, when mapping out legal and political strategies or making predictions, to test them with many different people in mind. A second component of embracing the complexity of the issue involves deconstructing marriage. Specifying the components of marriage is a crucial step toward identifying what it is about marriage that is desired or will benefit various constituencies within lesbian and gay communities. Marriage is not a monolith, although we are socialized to think of it as such. It is an extremely complex social, economic, legal, and religious institution, with deep emotional (but certainly not the same) significance to most individuals. It is closely tied to concepts of family and sexuality, both of which generate a strongly held set of social taboos in contemporary
47 Canadian and American societies.
Marriage includes a state licensing procedure at the point of entry that permits the state to control who can and cannot marry and to raise money from marriage license fees.4" It also includes divorce, a process that per46. Dian Day describes the stigma of being a lesbian mother within a cultural context in which "[real lesbians don't have children." Dian Day, LesbianlMother in LESBIANS IN CANADA 35, 36-37. 47. For example, our taboos about the relationship of adult sexuality to children are reflected in the notion that sex between married parents is not presumptively damaging to their children but that sex between a parent (especially a mother) and another adult outside the context of marriage is not "in the best interests of the child" and, therefore, may be a factor in denying custody to the parent. See, e.g., Fishback v. Fishback 46 R.F.L. (2d) 44 (Ont. Dist. Ct. 1985) (mother's sexual relationship with another man considered to be evidence that she would not act in the best interests of the children so custody given to father); Katherine Arnup, "'Mothers Just Like Others": Lesbians, Divorce, and Child Custody in Canada, 3 CAN. J. WOMEN & L. 18 (1989).
48. In addition to the same-sex prohibition (which may be express or implied), common bars to marriage include minimum age limits, insanity, absence of consent (mistake, duress, and fraud), prohibited degrees of affinity and consanguinity, and a prior existing marriage. See Marriage Act, B.C.
Rev. Stat. ch. 251 (1979); H.R.

GLANCE AT CONCUBINAGE AND
HAHLO, NULLITY OF MARRIAGE IN CANADA: WITH A SIDEWAYS

ITS LEGAL CONSEQUENCES 1-5
(1979).
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mits the state to control exit from the institution and to raise more money. 49 A complex series of economic benefits and burdens flow from the status of being married, both in the public sphere and in the private sphere. For example, some people who are married get tax breaks, 50 but marital or "family" status also disentitles some people from access to benefits provided through the social welfare system. 1 In the classic "private" context, being married leads to extended employment benefits but it may also hurt a spouse's ability to obtain credit.5 2 Marriage confers social legitimacy on relationships, it expresses a conformity with social norms that is good or bad in different communities and at different times,53 and it provides some people with psychological and emotional security within their relationships. The marriage system also includes the whole set of social, economic, legal, and emotional consequences of divorce. Legal systems governing marital property, spousal and child support, custody, and access all confer a host of benefits and burdens upon those who have been married. All of these features, and others, constitute the institution of marriage as it presently exists in our society. When lesbian women, gay men, and others argue in favor of recognition of same-sex marriage, however, they do not always have the whole marriage system or the whole group of lesbians and gay men in mind. Asking an anti-essentialist question about
The cost of a marriage license in 1991 in British Columbia is approximately CAD$55. Information available by telephone from the District Registrar of Births, Deaths, and Marriages, 250-605 Robson Street, Vancouver, B.C., (604) 600-2937. A medical examination, which is required in some states, can add to the cost of marriage. 49. Most of the old bars to divorce, particularly those prohibiting divorce unless certain marital "faults" could be proved, have been dropped from current divorce statutes, or "marital breakdown" grounds have been added, making divorce available to virtually any spouse who seeks it. However, judges in a number of jurisdictions can still refuse to permit a divorce when the result would be exceptional hardship for a nonconsenting spouse who has not committed a matrimonial offense or when reasonable provision has not been made for the children. Waiting periods of one year from the date of separation or the date of filing are also common. See M.A. GLENDON, supra note 7, at 67-68; see also the Divorce Act, R.S.C. 2d Supp. ch. 3 (1985). Divorce is expensive. Even with recent legislative and administrative changes designed to facilitate obtaining a divorce in Canada, a person seeking the simplest kind of divorce in Vancouver in 1991 without a lawyer or a purchased "divorce kit" would have to pay about CADS200. Client Information Handout of the Divorce Program of the Law Students Legal Advice Program of the University of British Columbia Faculty of Law. But in the American context, see Boddie v. Connecticut,,401 U.S. 371 (1971) (statute requiring payment of fee to obtain divorce held unconstitutional insofar as it denied indigent access to divorce). 50. Generally in Canada marriage is only advantageous for tax purposes in relationships in which there is one high-wage earner and one low- or non-wage earner. The trend has been to increasingly regard marriage as a tax-neutral event. 51. Bruce Ryder provides a valuable description of many of the socioeconomic benefits and burdens consequent upon marriage. See Ryder, supra note 3, at 48-64. 52. See A. Anne McLellan, Marital Status and Equality Rights in EQUALITY RIGHTS AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS 411, 415 (Anne F. Bayefsky & Mary Eberts eds. 1985). 53. For example, parents may approve but friends may view marriage as "selling out." Community approbation may feel great on your wedding day, but it also operates as a powerful social constraint on breaking up. Despite liberalized divorce laws and high divorce rates, to the extent that marrying was something really important to you, divorce is going to be pretty hard. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 45 1991
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same-sex marriage requires identifying what kinds of things lesbians and gay men want out of marriage, and then working through how the institution is likely to respond to those needs, considering the many different people within lesbian and gay communities. Only after this kind of analysis, it seems to me, should conclusions be drawn about whether struggling for the right to a marriage license (as compared to other kinds of reform) is a good strategy and for whom. Those who advocate recognition of same-sex relationships through the legal system of marriage frequently assert roughly four distinct yet interrelated objectives that lesbian and gay people seek in marriage. 5" Two of these are more abstract and two are more concrete. First, some people advocate marriage for primarily altruistic, political reasons, arguing that legal recognition of lesbian and gay relationships as marriages will revolutionize marriage and force society to confront and rethink its collective views of sex and sexuality.5 5 Second, some people argue that public validation and legitimation of same-sex relationships as equally worthy of re6 spect can be realized through recognition of a legal right to marry. 5 Third, some people see in marriage a range of socioeconomic benefits that could make a big difference in the lives of lesbian and gay families.5" Fourth, some people see in marriage a way of legitimating their relationships in the eyes of courts so that it is easier for them to keep their children.5" 1. Political Reform The argument that legally recognizing same-sex relationships as marriages will force our society to confront its deeply rooted sexist, heterosexist, and repressed beliefs about human sexuality and stimulate a complete
54. This is not a comprehensive list of the many reasons why individual lesbians and gay men may want to marry, although some of these factors may influence individuals (and may also feature in heterosexually identified individuals' decisions about marriage). I also do not want to suggest that there is widespread agreement in lesbian and gay male communities on these reasons or on the issue generally; in fact, the struggle for same-sex marriage has been controversial within lesbian and gay communities. See Friedman, supra note 3, at 142-43. 55. "We want to cause a re-examination and re-evaluation of the institution of marriage. We feel we can be the catalyst for that. Our getting married would be a political act with political implications." Michael McConnell, one of the plaintiffs in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972), quoted in Friedman, supra note 3, at 143. This restructuring of social constraints on sexual relations was one of the original goals of the gay liberation movement. See John D'Emilio, Making and Remaking Minorities: The Tensions Between Gay Politics and History, 14 N.Y.U. REV. L. & Soc. CHANGE 915, 920-21 (1986); David Rayside, Gay Rights and Family Values: The Passage of Bill 7 in Ontario,26 STUD. POL. ECON. 109, 110 (1988). 56. See, e.g., Ryder, supra note 3; Friedman, supra note 3; HARVARD LAW REVIEW, supra note
3; Comment, supra note 3. 57. See, e.g., Mary Eaton, Lesbians and the Law in LESBIANS IN CANADA 109; Ryder, supra note 3; Comment, supra note 3.
58. See, e.g., Arnup, supra note 47; Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthoodto Meet the Needs of Children in Lesbian Mother and Other Nontraditional Families, 78 GEO. L.J. 459 (1989-90); Nancy Polikoff, Lesbian Mothers, Lesbian Families: Legal
Obstacles, Legal Challenges, 14 N.Y.U. REV. L. & Soc. CHANGE 907 (1986).
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rethinking of sexual relations is, I think, a brave but ultimately misdirected political strategy. It is courageous because it conceives of lesbian and gay couples who seek to marry as the catalysts for and possibly the victims of radical social change-victims, since fundamental social changes are never accomplished without human cost. However, I worry whether the existence of a group of married lesbians and gay men can really revolutionize the institution of marriage.89 My concern arises from the fact that this argument is precisely the same as that used by reactionary groups against legal recognition of same-sex relationships as marriages. 60 Perhaps the lesbian or gay activist's confidence in the radicalizing potential of same-sex marriage reflects an unconscious acceptance of homophobic rhetoric, which assumes the inevitability of marriage, distracting attention from more radical projects of social reorganization.6 After all, marrying is on its face an assimilationist move, and, although society is not universal in its responses to change, it is likely to be regarded as such by most people. Without a compelling strategy that maps out how 62 acquiring a right to legally marry will trigger desired social changes, I find it more probable that current views of sex and sexuality will persist and that the public will continue to marry and divorce, noting only with passing interest that lesbians and gay men can now do the same. Finally, legal recognition of same-sex relationships as marriages or as equivalent to marriages may not simply prove ineffective to attain the political goal of sexual liberation, it may also prove harmful to this effort. In particular, the creation of fixed alternative categories of legal matrimonial relationships may contribute to the entrenchment of mutually exclusive and immutable categories of sexual orientation. In the process, less "mainstream" sexual identities may suffer further marginalization. 63
59. In fact, whether there is anything inherently radical about lesbian or gay male families is disputed. See Herman, supra note 29, at 801-02. 60. Recently, some conservatives have recognized that extending marriage to same-sex couples will promote "traditional values" and promote the conservative cause far more than resisting it. "It's one of the richest ironies of our society's blind spot toward gays that essentially conservative social goals should have the appearance of being so radical." Andrew Sullivan, Here Comes the Groom: A (Conservative) Casefor Gay Marriage,New Republic, Aug. 28, 1989, at 20. 61. Homophobic rhetoric constrains the debate in at least two ways. First, it presents the issue as whether to marry or not to marry, so that the institution of marriage itself is not open to revision. Second, the consequence of permitting lesbians and gay men to marry is presented as the destruction of the entire institution, since the rhetoric defines marriage as a heterosexual relationship. Characterizing the debate in this way reifies marriage and depicts it as a thing that may be easily and decisively destroyed. In fact, marriage is far more flexible and resilient an institution. For an excellent critique of marriage as unacceptably constraining lesbian relationships, see Ruthann Robson & S.E. Valentine, Lov(h)ers: Lesbians as Intimate Partnersand Lesbian Legal Theory, 63 TEMP. L. REv. 511 (1q90). 62. I am painfully aware of my own lack of knowledge here. Perhaps there are such strategies of which I am unaware. I worry, though, that advocates of this argument underestimate the vast inertia of the institution. Although the institution of marriage does change (for example, it has evolved to meet the needs of modern capitalist societies), it has withstood numerous feminist assaults without great difficulty. 63. Didi Herman expresses concern about "the professionalization of lesbian and gay movements . . as lawyers and legal academics take over setting agendas and defining terms of reference." HerHeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 47 1991
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2. Public Legitimation The second argument in favor of legal recognition of same-sex relationships as marriages, that allowing same-sex marriage will publicly legitimate lesbian and gay relationships, is expressly assimilationist. That is, its advocates do not seek the transformation of the institution of marriage so much as its extension to same-sex couples, in the name of equality. While it is obvious that the current marriage system flagrantly discriminates against lesbians and gay men and should be condemned for this, as I have argued earlier, it does not automatically follow that acquiring the right to marry is a sufficient solution for lesbians and gay men. What is undeniably conceptually offensive to liberal ideology should not be conflated with what is actually harmful to people: it is important to know who is hurt by not being able to marry and divorce, and how, and whether getting married and divorced will actually address these harms. The assumption in the "public legitimation" argument that marriage is a good thing should be questioned. Historically, the experience of marriage has been generally destructive for half of those who have married: women.6 4 Marriage has condoned and sustained class and racial segregation within a sexist context, it has stripped propertied women of their possessions, and it continues to play a significant role in the feminization
of poverty.65 Marriage has also sheltered and legitimized violence against
women and children.66 It is true that all of this damage has occurred
man, supra note 29, at 808. One consequence of this is the "marginalization of sexual identities thought to do the gay rights cause no good (i.e., butch/femme, drag queens, etc.)." Id. at n.81; see also G. KINSMAN, supra note 31, at 220; D'Emilio, supra note 55, at 916-22. 64. For histories of the evolution of legal structures and ideologies of family within patriarchal capitalist societies and their role in the subordination of women, see E. ZARETSKY, supra note 31;
Roberta Hamilton, Women, Wives and Mothers in RECONSTRUCTING THE CANADIAN FAMII.Y: FEMINISr PERSPECTIVES 3 (Nancy Mandell & Ann Duffy eds. 1988).
In criticizing marriage and family as instruments of women's oppression, I am referring only to the set of legal rules and ideologies that characterize these social institutions. Considered from a social perspective, families have been important sites of resistance to dominant group oppression for both women and men. See Carby, supra note 20; Jewelle Gomez, Repeat After Me: We Are Different. We Are The Same, 14 N.Y.U. REV. L. & Soc. CHANGE 935, 936-37 (1986); Herman, supra note 29, at 799-801. 65. In 1979, the National Council of Welfare stated that the numerically largest group of poor people in Canada were married women living with their husbands. See M. EICHLER, supra note 10, at 31. Women generally earn about 66 cents for every dollar men earn and, as a consequence of marrying and having children, women's pattern of participation in the paid workforce is far more interrupted than is men's. Because remuneration is so heavily tied to continuous employment (and often career advancement involves after-work activities), responsibilities to husband and children cause serious damage to married women's earning potential. See Mary Jane Mossman & Morag MacLean, Family Law and Social Welfare: Toward a New Equality, 5 CAN. J. FAM. L. 79 (1987); Wage Gap for Women Unchanged, Globe & Mail, Dec. 24, 1988, at A6; MarriageKey to Gap in Wages, Globe & Mail, Oct. 22, 1985, at A7; Women Sacrifice Career Plansfor Family, Statscan Says, Globe & Mail, Sept. 5, 1985, at A16. See also supra note 5. 66. Child abuse and woman abuse within the family have emerged only very recently as pressing social problems. Historically, society and law have expressly condoned violence against women within the household. For example, the origin of the phrase "rule of thumb" was a common law principle that a man could beat his wife legally as long as any weapon he used was no thicker than his thumb. In some states in the United States, rape is still defined so as to exempt men who rape their wives HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 48 1991
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while marriage has been restricted to opposite-sex couples and that individuals in same-sex relationships do not suffer gendered economic inequality relative to each other. However, this does not mean that lesbian and gay couples will be able to avoid these ills of marriage any more easily than straight couples. We have all been socialized into the mores of our sexist, racist, classist, and heterosexist society and a lesbian or gay male identity is not a reliable shield against them.17 Although same-sex relationships are not the same as opposite-sex relationships, they nonetheless still exist within the context of powerful social ideologies that ingrain gendered, classed, and racial patterns of exploitation. Lesbian or gay male partners may differ from each other on the basis of class, race, age, education, and other differentiating characteristics, which, because of their position in the social hierarchy, also tend to alter the balance of power within
from criminal liability. See Anne McGillivray, Battered Women: Definition, Models and ProsecutorialPolicy, 6 CAN. J. FAM. L. 15, 16 (1987). 67. Claudette Lambert captures some of the heterosexist and sexist aspects of socialization in her recollections of her schooling in Quebec: PRIMAIRE: Cours: Dict~e "Jean et Jeannette s'aiment. Jean et Jeannette sont marine depuis cinq ans. Jean et Jeannette ont deux beaux enfants, Yves et Yvette. Yves joue aux camions. Yvette jouc A la poup~e." CEGEP: Cours: psychologie du comportement sexuelle "- Nous savons que deux personnes sur dix sont homosexuelles, logiquement nous devrions done retrouver quelques sp&cimens parmi nous. Nous reparlerons de ce probl~me au chapitre dix de votre livre, chapitre traitent des dysfonctions sexuelles chez l'&re humain." UNIVERSITE: Cours: Sexualits et Soci&ts Je soumet, timidement, un essai sur les tendances politiques du lesbianisme, on remarque: "Travail tr~s intfressent, malheureusement, vous etes trop pras de votre sujet d'Etude, en locurence [sic], vous manquez d'objectivit&" [TRANSLATION: PRIMARY SCHOOL: Course: Dictation "Jean and Jeanette love each other. Jean and Jeanette have been married for five years. Jean and Jeanette have two lovely children, Yves and Yvette. Yves plays with trucks. Yvette plays with dolls." CEGEP [a type of secondary school]: Course: Psychology of sexual behavior "We know that two of ten persons are homosexual, logically it follows we must find among us several specimens. We will talk again about this problem in chapter ten of your book, the chapter on human sexual dysfunction." UNIVERSITY: Course: Sexuality and Society I submit, timidly, an essay on the political leanings of lesbianism, the response: "Interesting work, unfortunately, you are too close to your subject-matter, in this case, you lack objectivity."] Carolynn Gammon, Ming Dinh, Claudette Lambert, Monica McQueen, Renel Mitchell, Susan O'Donnell, & Ina Rimpau, Lesbian Studies at Concordia (Carolyn Gammon ed.) in LESBIANS IN CANADA 209, 214. See also Stone, supra note 44, at 10. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 49 1991
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68 relationships. Battery is not unknown in lesbian and gay relationships. Some same-sex couples divide household responsibilities along lines that reflect traditional gender patterns-and it is hard not to do so in a system that makes this division of labor economically advantageous whenever there are young children in the household. Marriage strengthens the force of dominant ideologies both in its symbolic and social influences, and in more concrete ways. 9 For example, pressure to conform to traditional gendered roles increases when judges rely so heavily on these ideologies in arbitrating the consequences of termination of marital or marriage-like
relationships.
70
The process of seeking such legal reform can also be damaging. Cases in which lesbians and gay men seek recognition of their family or spousal status have been based on trying to establish that lesbian and gay relationships conform to prevailing legal ideologies of family and marriage. The effort of making out a case of "sameness" has costs both for those who try to fit the mold and for those who clearly cannot. Even if some lesbian and gay marriages will not reproduce the pattern of subordination and domination that characterizes heterosexual marriages, struggling for a right to marry legitimates and entrenches the institution-which has adverse con1 sequences for heterosexually identified women.7 Another assumption underlying the "public legitimation" argument for legal recognition of same-sex marriage is that marriage is voluntary. The equality that is sought is the right to choose to marry so that acquiring the right simply increases the field of options for lesbian and gay couples. But the premise of choice in this formulation is misleading. One of the major trends in family law in Canada in recent years has been the assimilation of more and more unmarried heterosexual couples into the legal marriage system. That is, it is increasingly difficult for individuals living within heterosexual relationships to avoid being considered "married" by the
68. In particular, the eroticization of violence expressed in sado-masochism, or S/M, is a difficult issue in lesbian and gay male communities. For a discussion of intra-lesbian violence in the context of lesbian legal theory, see Ruthann Robson, Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory, 20 GOLDEN GATE U.L. REV. 567 (1990). I think it possible that S/M (whether it is practiced in lesbian, gay male, or heterosexual contexts) reflects the (male) eroticization of violence in society generally and is problematic for that reason. 69. Ruthann Robson and S.E. Valentine are critical of efforts to recognize same-sex marriage for this reason: The specter of lesbian marriage and lesbian quasi-marriage thus poses the danger of demarcating acceptable lesbians (married couples) from unacceptable lesbians (unmarried), as well as threatens to hetero-relationize and erase lesbianism. Marriage is an attempt to limit the multiplicity of relationships and the complexities of coupling in the lesbian experience. Robson & Valentine, supra note 61, at 540. 70. In Anderson v. Luoma, 50 R.F.L. (2d) 127 (B.C.S.C. 1986), for example, although the dependent partner's claim for spousal support from her former lesbian partner was denied, Dohm J. used the device of constructive trust to transfer some property to her because she had stayed home to care for the children and performed traditional women's household labor. 71. "Yet, even if we assume that lesbian or gay families are so different or so radical (and these are by no means the same thing), the ability of existing structures to accommodate us is done at the expense of women as a whole." Herman, supra note 29, at 803. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 50 1991
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state with respect to support obligations, pension and other employment benefits, and so on.7 2 If lesbians and gay men who wish to marry gain the "right" to choose to marry, cohabiting lesbians and gay men who wish to choose otherwise may find this increasingly difficult. The goals of lesbians and gay men who seek to marry for this reason are equality and public validation of their relationships. Both are undeniably important goals that touch on the deep structure of the injustice that society has inflicted on lesbians and gay men. The community approval of a loving relationship as one deserving of public recognition and respect that the marriage ceremony signifies would likely ameliorate the social inequality and stigmatization felt by lesbians and gay men to some extent. But it is important not to overestimate the magnitude of the consequences flowing from the issuance of a marriage license. The very necessary struggle for formal equality does not guarantee any degree of substantive equality. 73 There is still lots of room for de facto double standards, and lesbian and gay marriages could easily come to occupy one of the lower tiers of an already hierarchical social marriage system. 4 Possession of a marriage license may not be sufficient for lesbian and gay couples to marry within particular religions, and a legal change of status may not be a persuasive means of gaining family acceptance and support for the relationship. Moreover, for some lesbians and gay men, gaining legal recognition of their relationships will not address the most significant reasons for their experiences of inequality and oppression.7 5 The problem is that a
72. See G.N. RAMU, MARRIAGE AND THE FAMILY IN CANADA TODAY 3, 17 (1989) (cohabitation is being assimilated to marriage both legally and socially). For example, in Ontario, if you have
lived in a heterosexual relationship for three years or if you have a child with your opposite-sex partner, you are caught by the spousal support provisions of the Family Law Act, Rev. Ont. Stat. ch. 4, pt. III (1986). In its 1985 report, EQUALITY FOR ALL, the federal standing committee on legal affairs recommended that all individuals living in heterosexual relationships for one year or more be
treated as married for all purposes.
LEGAL AFFAIRS, 1st EQUALITY FOR ALL]. EQUALITY FOR ALL: MINUTES OF PROCEEDINGS AND EVIDENCE OF THE SUB-COMMITrEE ON EQUALITY RIGHTS OF THE STANDING COMMITTEE ON JUSTICE AND
Session of the 33rd Parliament 37 (Patrick Boyer, chair, 1984-85) [hereinafter
73. Blacks in the United States have "enjoyed" formal equality for some time now and have yet to achieve substantive equality by most social indicators. For example, see the statistics cited by Harriet R. Michell in The Case for the Black Family, 4 HARV. BLACKLETTER J. 21, 22-23 (1987). 74. Some marriages have always had more social status than others. For example, although antimiscegenation laws were legally invalidated in the United States in 1967 (Loving v. Virginia, 388 U.S. 1 (1967)), "mixed race" couples are still less socially approved. Endogamy is still widely practiced. See G.N. RAMU, supra note 72, at 6 (roughly two-thirds of Canadians marry persons of their own "kind"); see also Gary A. Cretser & Joseph J. Leon, Intermarriagein the U.S.: An Overview of
Theory and Research in
INTERMARRIAGE IN THE UNITED STATES
3, 11 (Gary A. Cretser & Joseph
J. Leon eds. 1984) (vol. 5, no. 1 of Haworth Press Marriage & Family Review series) (while racial and ethnic intermarriage is increasing, ethnic intramarriage remains the statistical norm). 75. Lesbians and gay men who are oppressed because of their race, culture, and/or disability will probably not find that the respectability marriage confers is adequate to ameliorate these kinds of discrimination. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 51 1991
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claim for a "right" to marry is at best an argument for legal toleration of same-sex relationships, but such tolerance falls short of social respect. 6 3. Socioeconomic Benefits
The next two rationales for seeking legal recognition of same-sex relationships leave the realm of ideals and come down to earth. They are pragmatic, not theoretical, and they seek in marriage material benefits from which same-sex couples are currently excluded. Clearly there are some socioeconomic benefits to marriage, and it is unjust to exclude same-sex couples from them. However, the socioeconomic benefits sought by advocates of same-sex marriages do not apply equally to everyone nor do they all flow automatically from marriage. In addition, marital status carries with it certain economic burdens that disproportionately affect some people. Just what these various benefits and burdens are and how they affect different people should be calculated before concluding that marriage will improve the economic position of lesbian and gay couples. In conducting this analysis, whether the benefit or burden applies to married couples exclusively or also to unmarried cohabitants in heterosexual relationships, as well as whether it applies to "spouses" or to "families" must also be considered." Finally, the benefits and burdens that flow from the termination of marriage should not be omitted. To give a sense of the complexity of this enterprise, here is a list of some of the socioeconomic benefits and burdens that marriage brings: 8 Benefits 9 public pensions immigration preferences for family members, married spouses, and engaged persons
76. Although civil rights arguments can be extremely powerful, they are inadequate in themselves to accomplish social transformation. See Elizabeth Schneider, The Dialectic of Rights and Politics: PerspectivesFrom the Women's Movement, 61 N.Y.U. L. REV. 589 (1986) (arguing that while rights claims have done some good for the women's movement, they are only one aspect of the larger legal and political strategy needed for social change). For critiques of the adequacy of tolerance, see Martha Minow, Putting Up and Putting Down: Tolerance Reconsidered, 28 OSGOODE HALL L.J. 409 (1990); E.V. SPELMAN, supra note 16. Lawyers, who are trained to regard this as the only way to resolve social conflicts, should be particularly wary of "rights talk." 77. If the benefit is not restricted to married spouses, lesbians and gay men may be able to acquire the benefit without marriage. For example, in Veysey v. Canada (Commissioner, Correctional Service), 44 C.R.R. 364 (F.C.T.D. 1989), aff d on other grounds, 109 N.R. 300 (Fed. Ct. App. 1990), a gay male prisoner was held entitled to a "family visit" with his partner through a program that provided family visits with both married and unmarried heterosexual partners. See also Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990). 78. The benefits and burdens listed apply in the Canadian context and may well differ in the United States. For Canadian information, see generally EQUALITY FOR ALL, supra note 72; McLellan, supra note 52; Mary Jane Mossman, Individualism and Community: Family as a Mediating Concept in LAW AND THE COMMUNITY: THE END OF INDIVIDUALISM 205 (Allen C. Hutchinson & Leslie J.M. Green 1989); Ryder, supra note 3. 79. I have placed "family" and "spouse" in quotation marks when their definitions are unclear, that is, when their meaning may extend beyond married relationships. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 52 1991
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COMPLICATING THOUGHTS municipal benefits such as "family" zoning ordinances dependent married spouse tax deduction health insurance (lower "family" rates)8 eligibility for prisoner "family" and conjugal visiting programs8 ' adoption. (administrative policies favoring married couples) intestate succession laws favoring "spouses" testator's "family" maintenance legislation (when the deceased has not adequately provided for his or her "family") right to sue for the wrongful death of a "spouse" no criminal liability for married spouses who would otherwise be considered accessories after the fact compensation for "families" of deceased crime victims interspousal transfers of property by will or trust protection against eviction upon death of a tenant for "spouses" or "family" members right to receive worker's compensation payments upon death of worker "spouse" "spousal" and "family" employment benefits in collective agreements, legislation, or private employers' benefit packages (e.g., bereavement leave for death of a "spouse's" relative)82 power to make medical decisions for an incapacitated "spouse" or 83 "family" member "family" discounts for clubs and other recreational activities
Burdens " "spouse in the house" rules for state welfare assistance (counting as claimant's income any income received by opposite-sex cohabitant) " prohibition against income-splitting for tax purposes " disentitlement from state benefits on the basis of availability of financial claims against former married or unmarried cohabitant 84 " termination of state benefits upon marriage " income tax income attribution rules for interspousal transfers loss of "status" upon marriage for First Nations women in Canada8 5
80. See Andrews v. Ontario (Minister of Health), 64 O.R. (2d) 258 (1988). In the United States, because of the absence of universal public health care, the issue is not so much lower rates for families but eligibility for "family members" in private health care packages. 81. See Veysey v. Canada (Commissioner, Correctional Service), 44 C.R.R. 364 (F.C.T.D. 1989), affd on other grounds, 109 N.R. 300 (Fed. Ct. App. 1990); Doe v. Sparks, 733 F. Supp. 227 (W.D. Pa. 1990). 82. See Mossop v. Canada (Secretary of State) 10 C.H.R.R. D/6064 (1989), rev'd, Canada (Attorney General) v. Mossop, 71 D.L.R. (4th) 661 (Fed. Ct. App. 1990), leave to appeal to S.C.C. granted Apr. 25, 1991. 83. See In re Guardianship of Kowalski, 382 N.W.2d 861 (Minn. Ct. App. 1986), cert. denied, 106 S. Ct. 1467 (1986). 84. See Califano v. Jobst 434 U.S. 47 (1977) (upholding Social Security Act provision cutting off benefits to dependent handicapped child upon marriage even if child is permanently disabled and marries another disabled person not already receiving benefits). 85. Although the provision of the Indian Act that provided that status Indian women would lose their status if they married nonstatus men (but status Indian men would retain their status and their nonstatus wives would acquire status) has been repealed, the legislation that restores status to these women and children permits bands to determine whether children of these women will regain band membership. Further, the status of grandchildren of Indian women who lost status under the old HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 53 1991
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" criminal liability for failure to provide "dependents" with the necessities of life8" " disentitlement from government student loans on the basis of "spouse's" income " conflict of interest legislation " anti-nepotism rules in employment o "spouse's" credit history taken into account in credit rating o discounting of a "spouse's" income in bank's mortgage calculations on the assumption that she is likely to leave the workforce to care for children With respect to economic benefits if the relationship ends, there is widespread acknowledgement that the current system of legal regulation of the economic consequences of divorce and separation is inequitable both in cases of direct legal intervention and in the approximately 90 percent of cases that are settled out of court. The people the system works worst for (in economic terms) are women with children;8 7 however, most people who encounter it feel it is unjust.8 8 In this context, it is hard to know whether legal provisions governing the economic aspects of marital termination are a benefit or a burden. For example, spousal support payments may seem to be a burden to the payor and a benefit to the payee. However, the payor's burden is significantly offset by being able to deduct support payments for income tax purposes; 89 extremely high default rates and very low enforcement rates 90 may mean that a spouse or former spouse is worse off than a nonspouse who may receive less from the state but can rely on getting it. 1 Finally, it should be remembered that acquiring marlegislation is not guaranteed whereas the status of grandchildren of Indian men who married nonstatus women is assured. See Kathleen Jamieson, Sex Discrimination and the Indian Act in ARDUOUS JOURNEY: CANADIAN INDIANS AND DECOLONIZATION 112, 131-32 (j. Rick Ponting ed. 1986).
86. Criminal Code, R.S.C. ch. C-46, 215 (1985). 87. See Mavis MacLean, Households After Divorce: The Availability of Resources and Their
Impact on Children in GIVE AND TAKE IN FAMILIES: STUDIES IN RESOURCE DISTRIBUTION 42, 5455 (Julia Brannen & Gail Wilson eds. 1987); Mossman & MacLean, supra note 65.
88.
See M.A. GLENDON, supra note 7, at 86-96; Robert H. Mnookin, Divorce Bargaining: The
Limits on Private Ordering in THE RESOLUTION OF FAMILY CONFLICT: COMPARATIVE LEGAl.
364 (John N. Eekelaar & Sanford N. Katz eds. 1984). 89. See Maureen Maloney, Women and the Income Tax Act: Marriage, Motherhood, and Divorce, 3 CAN. J. WOMEN & L. 182, 207-08 (1989). 90. See Freda M. Steel, An Overview of Provincial and Federal Maintenance Legislation, 4 CAN. FAM. L.Q. 261, 261-65 (1989); Ontario Cracks Down on Support Defaulters: Employers to Deduct Payments, Globe & Mail, Dec. 6, 1990, at Al; Men Still Escaping Support Payments Despite Stricter Rules, More Resources, Globe & Mail, Nov. 21, 1989, at Al.
STUDIES
91. While matrimonial property rules that provide for presumptive equal division of the couple's assets when the marriage ends look like a substantial economic benefit, they may prevent a more equitable result in cases in which constructive trust doctrines would substantially assist an individual in an unmarried cohabitant relationship (both opposite-sex and same-sex). See Anderson v. Luoma,
50 R.F.L. (2d) 127 (B.C.S.C. 1986); (constructive trust applied to apportion property between lesbian cohabitants); but see Rawluk v. Rawluk 23 R.F.L. (3d) 337 (S.C.C. 1990) (indicating constructive trust doctrine may apply to married spouses in some circumstances). HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 54 1991
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tal status will not end all socioeconomic discrimination on the basis of sexual orientation.9 2 It is beyond the scope of this paper to calculate how these various benefits and burdens will likely affect different same-sex couples. What should be clear from this discussion, however, is that statements that lesbians and gay men benefit socioeconomically from being able to marry will likely have only some lesbians or gay men-and some benefits or burdens-in mind. On the basis of this brief catalogue of socioeconomic consequences of marriage, I would guess that those individuals who most benefit from the socioeconomic advantages of marriage are members of the middle class. Those who rely for most of their income on state benefits are more likely to be economically penalized for marrying. Given that class relations are interpenetrated by gender and race relations, I suspect that, for example, white gay men as a group will likely benefit more from marriage than will black lesbian women, in purely socioeconomic terms. 3 4. Children
Marriage has sometimes been advocated as a way for lesbian or gay parents to keep their children, particularly when the challenge to custody is made by a heterosexual individual or couple, or in situations in which a genetically related parent denies the parental claims of a former lesbian partner.94 Marriage might also be seen as a way of safeguarding one's children from the state on the assumption that children living with unmarried lesbian or gay parents are more likely to be found by the state to be children in need of protection under the standard tests in child protection legislation. 5 This argument rests on the assumption that possession of a marriage certificate will legitimize the sexual relationship between the adults in the household in the eyes of the court so that the judge will not consider the lesbian or gay relationship to be a threat to the "best interests of the chil92. Marital status will not directly affect the overt and covert discrimination in employment in the military or in the police, nor will it remove homosexuality as a factor in national security clearances. Marital status has not been generously interpreted as a protected ground of discrimination in human rights legislation in Canada. For example, in Blatt v. Catholic Children's Aid Society, 1 C.H.R.R. D/72 (1980), a male childcare worker was fired by the Society for living with a woman in a "common law" relationship. Dismissing Blatt's claim, the Board held that "this is an issue of 'lifestyle' or sexual morality, not an issue of marital status." Id. at 73. 93. These tentative conclusions are restricted to the consequences of marrying. The economic consequences of divorce for lesbians and gay men are much harder to assess, as I have indicated. Having to share property or pay support is an economic burden for one former spouse; acquiring the right to make such a claim is a dubious benefit for the other. See supra notes 87-91 and accompanying text. 94. For example, Arnup suggests that, since stability of the family unit is a factor in custody determination and marriage is a measure of stability, inability to marry precludes lesbians and gay men from establishing the stability of their relationships. See Arnup, supra note 47, at 26. 95. Safeguarding one's children from the state is often a more pressing concern to women of color and particularly First Nations women in Canada than are intra-family custody disputes. Kline, supra note 23, at 129-30. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 55 1991
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dren" (the governing principle in all child custody cases 6). But is the absence of a marriage certificate really the problem? The history of judicial treatment of same-sex relationships in the custody context constitutes such appalling evidence of deep-seated and visceral anti-lesbian and antigay feeling in the judiciary that it seems naive to think such attitudes can be wiped out by a marriage certificate. In fact, the enormous social significance vested in a marriage certificate may provoke greater hostility on the part of homophobic judges toward married lesbians and gay men. Even when the judge is not overtly homophobic, heterosexist bias may well manifest itself in matters, such as the assessment of credibility," 7 that are critical to success in a contested custody case. It is also important to remember that alongside the catalogue of anti-lesbian and anti-gay rulings, judicial titillation and inappropriate inquiry into sexual relationships, and offensive moral pronouncements about the lives of litigants in custody cases involving lesbians and gay men, lies a similarly reprehensible list of judicial actions in cases involving heterosexually identified married women attempting to retain custody of their children.98 In fact, the excessive judicial scrutiny, moral pronouncements, and serious constraints on behavior that characterize custody cases regardless of how the litigants' sexual orientation is described to the court may be more reflective of the defects in our system of custody dispute resolution in general than of the importance of a marriage certificate. Custody disputes arise in a wide variety of contexts-for example, a lesbian may be seeking custody of children against their biological father, or she may be opposing his relatives, or she may be litigating against a former lesbian partner with whom she has had children (and she may or may not be the biological mother), or she may be opposing her lover's relatives-and they are always agonizingly painful, stressful, and expensive. In the vast majority of cases, both parties clearly meet the minimum standards of parenting ability required by law, and the judge is required to select between people who desperately want custody of the child(ren) on the basis of the child(ren)'s "best interests." No one knows what that means. In the face of this vast discretionary power to do what is "best" for the child(ren) and overwhelming pressure to decide cases as quickly as possible, judges rely on "common sense," conventional morality, and a whole host of considerations that reflect the prejudices of privileged groups in our society to
96. See SUSAN CREAN, IN THE NAME OF THE FATHERS: THE STORY BEHIND CHILD CUSTODY 23 (1989). 97. Mary Eaton suggests that lesbians tend to be regarded as less credible in court. See Eaton, supra note 57, at 111. 98. Arnup notes that judges exercised power "to determine whether a mother deserved to have custody of her children." Arnup, supra note 47, at 25. See also Susan B. Boyd, Child Custody and Working Mothers in EQUALITY AND JUDICIAL NEUTRALITY 168 (Sheilah L. Martin & Kathleen E. Mahoney eds. 1987); S. CREAN, supra note 96; June Gordon, Multiple Meanings of Equality: A
Case Study in Custody Litigation, 3 CAN. J. WOMEN & L. 256 (1989).
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which virtually all judges belong. Thus, while not being married may well be a mark against some parents (whether gay, lesbian, or heterosexually identified), being a lesbian or a gay man will likely also be a negative factor-as will being a working mother, belonging to a nontraditional religion, and so on. As long as the custody dispute resolution system remains unchanged, there will be an informal hierarchy of preferred parents,99 reflecting judges' assumptions about who is a good parent. Married lesbians and gay men will simply take their place in the ranks (likely above unmarried lesbians and gay men and below heterosexual parents). Trying to conform to the ,evolving judicial standard of the "good lesbian mother"' ' 0 may acquire a further gloss if it becomes possible to be a married lesbian mother, but the stereotype will remain and may even gain strength if same-sex partners can (and so can be expected to) marry. Given the serious inadequacies of the custody dispute resolution system, it may be wise to pause before seeking a reform that would inevitably bring lesbian and gay parents into greater contact with it. Although it is true that custody disputes often arise outside the context of marriage, the termination of a marriage necessarily involves the intervention of a court to scrutinize and resolve custody arrangements. And the adversarial nature of the system exerts a powerful influence at a time when individuals, regardless of their sexual identities, are terribly vulnerable to feelings of antagonism against their former partners. Contact with the marriage dissolution system, especially when young children are involved, heightens conflict, exacerbates emotional strain, and costs a lot of money, to the det1 0 ' Adding a new and growing category of custody riment of everyone. disputes between divorcing same-sex couples may well increase the magnitude of the problem rather than ameliorate the injustices already experienced by lesbian and gay parents. It is true that lesbian and gay parents are currently at greater risk in custody litigation, both against heterosexually identified persons and biological parents; it is shocking that an absentee genetic father has more legal rights to his genetic offspring than does the lesbian co-parent who lives with, cares for, and loves the child along with its genetic mother.
99. A picture of those whom the state prefers as parents can be gleaned from a brief survey of intra-family and state-family (child protection) custody cases. The class, cultural, and gender biases of society are painfully illustrated in the stories of those who lose their children. See, e.g., Patricia A. Monture, A Vicious Circle: Child Welfare and the FirstNations, 3 CAN. J. WOMEN & L. 1 (1989) and the authors cited supra note 98. 100. Essentially, the bad lesbian mother is a woman who is certain that she is a lesbian, is not ashamed of being a lesbian, and who is committed to changing the social status of lesbians. The good lesbian mother will be completely and utterly secretive. The good lesbian mother is a woman who teaches her child that she is a freak, that there is absolutely nothing positive about what she is in terms of her lesbianism, that she is something to be ashamed of. Eaton, supra note 57, at 118. 101. See Susan Maidment, The Matrimonial Causes Act, s. 41 and the Children of Divorce: Theoretical and Empirical Considerationsin THE STATE, THE LAW, AND THE FAMILY: CRITICAL PERSPECTIVES 159 (Michael D.A. Freeman ed. 1984) (studying the effects of divorce on children). HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 57 1991
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Similarly, it is manifestly unfair that a lesbian parent who is not genetically related to her child has no legal rights as against a former partner who is a genetic parent. The injustice and psychological harms in these situations should galvanize reformers to action. But turning to custody law and the courts in the absence of substantial legislative reform, with only a marriage certificate in hand, may not make a very big difference. C. Organizing Common Threads
While the analysis in the preceding section has been sketchy, and a far more thorough inquiry into the diverse effects of marriage on lesbian and gay people needs to be conducted, it does seem clear that the effects of acquiring a right to marry are not going to be felt uniformly across the spectrum of individuals within lesbian and gay communities. Clearly, legal recognition of same-sex marriage will have some positive effects in each of the four areas discussed. With respect to the goal of political reform, same-sex marriage may stimulate desired changes in some sectors of society, constituting an important step toward social transformation. Being able to marry will, in the eyes of some lesbians and gay men, contribute to a felt experience of greater public legitimation of themselves and their relationships. Further, removal of the same-sex marriage bar will be a vindication of rather than a challenge to liberal ideology; the lack of conceptual consistency that has plagued defenders of our liberal society in this area will have been erased. Marriage will probably work out well for those same-sex couples who want to marry, do marry, and stay married. 0 2 It will directly provide economic benefits to some, and it will provide a lever to get associated benefits. If the marriage ends, dissolution will probably work out best Oust as in heterosexually identified families) when there is least contact with the judiciary-in childless, middle-class couples when the divorce is relatively amicable, there is a roughly equal division of power between the partners, the partners are of roughly equal wealth, and they are at similar points in their respective careers. Current property, support, and custody statutes do provide a background set of rules and entitlements within which private ordering can occur. But for others, particularly the very poor, those whose relationships end in a great 03 deal of acrimony, and "nontraditional ' 1 parents who wish to retain custody of their children, marriage is not likely to prove a boon. I do not believe that it is coincidental that those whom marriage is most likely to benefit are those who are already fairly high up in the hierarchy of privilege that pervades society at large. Thus, another possible conse102. The vast majority of committed heterosexual relationships are still marriages; however, the percentage of these unions has remained relatively constant in the recent past while unmarried heterosexual cohabitant relationships have increased by 36%. The divorce rate in Canada in 1986 was nearly 1.3 per 100,000. See STATISTICS CANADA, supra note 5. 103. That is, parents whose lives do not correspond to judges' views of good parents. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 58 1991
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quence of legal recognition of same-sex marriage is that differences of power and privilege within lesbian and gay communities might be exacerbated. IV.
FUTURE DIRECTIONS
Recognizing that legal marriage is going to help some and hurt some roughly according to existing ranking of social power is no great insight. It is simply to acknowledge the power of the system within which we function and its formidable resistance to reform. This does not mean that reform is useless, only that its scope must be narrowed. If lesbians and gay men wish to achieve real and lasting gains, rather than a succession of triumphs and disappointments analogous to those experienced in the struggle for equality for women, then energies devoted to the struggle for removal of the same-sex marriage bar should expand to include a greater diversity of efforts. While same-sex marriage is probably not a good thing for everyone, there is no reason why the package of benefits and burdens that comprise marriage must be kept intact. Some of the good that marriage brings can be achieved by litigation for specific benefits. 0 4 By seeking legal acknowledgement of same-sex relationships in this more gradual way, lesbians and gay men might have a greater chance of success with a largely (but not wholly) unsympathetic and hostile judiciary. Such a strategy has the additional advantage of lowering the stakes in any particular lawsuit, so 1 0 5 The that a loss is not so devastating for the success of the whole project. specific beriefits sought could reflect a consensus of concerns forged a~ross diverse constituencies within lesbian and gay communities, thereby mini1 0 Organizing around mizing possible damaging consequences for others.
104. See, e.g., Andrews v. Ontario (Minister of Health), 64 O.R. (2d) 258 (1988) (seeking "family" premium rates for health insurance for lesbian partner); Mossop v. Canada (Secretary of State) 10 C.H.R.R. D/6064 (1989) (seeking bereavement leave following death of gay partner's father), rev'd, Canada (Attorney General) v. Mossop, 71 D.L.R. (4th) 661 (Fed. Ct. App. 1990), leave to appeal to S.C.C. granted Apr. 25, 1991; Veysey v. Canada (Commissioner, Correctional Service), 44 C.R.R. 364 (F.C.T.D. 1989) (prisoner seeking "family visit" with gay partner), affd on other grounds, 109 N.R. 300 (Fed. Ct. App. 1990); Re Carleton University and C.U.P.E., Local 2424, 35 L.A.C. (3d) 96 (1988) (grievance alleging discrimination for failure to provide spousal health and dental benefits to gay partner); Braschi v. Stahl Associates Co. 74 N.Y.2d 201; 543 N.E.2d 49 (N.Y. 1989) (rent control statute protecting "family members" held to include same-sex partners); Donovan v. County of Los Angeles State Compensation Ins. Fund 73 Cal. Comp. Cases (Workers' Comp. App. Bd. Nov. 3, 1983) (same-sex partner awarded workers' compensation benefits upon death of employee). 105. For example, a case that holds that a lesbian partner is not a spouse for the purposes of health insurance benefits does not preclude a court from deciding that a gay male prisoner is eligible for a Family Visiting program in respect of his partner. See Andrews v. Ontario (Minister of Health), 64 O.R. (2d) 258 (1988); Veysey V. Canada (Commissioner, Correctional Service), 44 C.R.R. 364, (F.C.T.D. 1989), affd on other grounds, 109 N.R. 300 (Fed. Ct. App. 1990). 106. For example, recognition of same-sex marriage is likely to entail for unmarried lesbian or gay cohabitants treatment similar to that experienced by unmarried heterosexual cohabitants. This could easily have severe adverse consequences for individuals dependent on social assistance and whose income from the state depends on the economic resources of the whole family. Legal recognition of HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 59 1991
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these varied projects provides multiple occasions for voicing common concerns and learning from each other. Reform efforts need not be carried on through litigation alone. Lobbying for change at the legislative level can be an effective strategy.10 7 Protecting lesbians and gay men through nondiscrimination legislation is not a narrow or specific reform, but it does have the virtue of abstraction, so that it is less likely to arouse heterosexist or homophobic concerns than a frontal assault on marriage. Local governments might provide an easier forum in which to lobby for some changes.'0 8 Further gains may be made in the private sphere, for example, through collective agreements that accord the same benefits to same-sex couples as they do to married couples.' 0 9 Through the gradual accumulation of a series of small gains--bereavement leave for a gay man, family visits for a gay prisoner, recognition of same-sex relationships in a collective agreement, municipal licenses for same-sex partners, tenancy legislation, protection against nondiscrimination in human rights legislation, and on many other fronts-a real and lasting difference can be made in the lives of many lesbian and gay couples. While such diverse efforts at social reform for lesbian and gay families are less dramatic and carry less symbolic force than a judicial overturning of the same-sex marriage bar, they have the considerable advantage of allowing lesbian and gay communities much more control over the effects of their struggles, permitting them to select the benefits from the burdens and to discard those aspects of marriage and divorce law that are not in their various interests. This is not to say that removal of the same-sex marriage bar cannot constitute an important step in this process. The very strong symbolic, emotional, and political statements to be made in such a victory are undeniably important. But I think that if such a step is to be successfully taken-and successfully means with all of the lesbian and gay communities in mind-it must be far more carefully scrutinized, through the kind of analysis I have suggested, than has yet occurred. It must take its place as another in a series of little steps, one of many different efforts on many fronts, timed in a way that the few are not sacrificed for the many. When
lesbian and gay partners as families for the purposes of health insurance would not arouse the same immediate concern. 107. Rayside, supra note 55. 108. Andrew Sullivan notes that several American cities have passed domestic partnership laws, including San Francisco, Cal.; Berkeley, Cal.; Madison, Wis.; and Los Angeles, Cal. See Sullivan, supra note 60, at 20. However, the San Francisco law was subsequently defeated by voters under Proposition "S". See Robson & Valentine, supra note 61, at 535 & nn.131-133. 109. For example, in Andrews v, Ontario (Minister of Health), 64 O.R. (2d) 258, 261 (1988), the collective agreement provided that spousal benefits would apply to same-sex as well as oppositesex couples and the employer was willing to provide them to Andrews and her partner. It was the Ontario government that objected to the application of the family health insurance premium rate in Andrews' case. HeinOnline -- 1 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 60 1991
1991]
61
to seek a "right" to marry and how to do it, if at all, are complicated questions that do not admit of easy answers. In this essay, I have attempted to show just how complicated these questions are. By pausing to consider the many different situations of lesbian and gay people and by carefully dissecting the various elements of the institution of marriage, genuinely progressive reform is possible. While the legal institution of marriage is one of society's most basic institutions and one from which lesbians and gay men should never have been barred, I think the message of this paper is that we should all be wary of package deals.

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Some Complicating Thoughts on Same-Sex Marriage

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LAW & SEXUALITY

from Modern Physics, 103 HARV. L. REV. 1, 17-20 (1989).

(1987) (Part I of POLITICS, A

WORK IN CONSTRUCTIVE SOCIAL

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Rev. Stat. ch. 251 (1979); H.R.

HAHLO, NULLITY OF MARRIAGE IN CANADA: WITH A SIDEWAYS

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Session of the 33rd Parliament 37 (Patrick Boyer, chair, 1984-85) [hereinafter

Theory and Research in

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