Beyond (Straight and Gay) Marriage:
Valuing All Families Under the Law
April 28, 2008
Good afternoon everyone, my name is Michele Storms. I'm the Director of
the Gates Public Service Law Program, and it's my pleasure to welcome
you to our last installment of our speaker series for this academic
program is an opportunity to share with our law school community, and
with the broader community important legal issues, and practice issues
around public service law, and today is no exception.
like to tell you about our speaker, and about what we'll be talking
about today. I think that many of you already know that last year
Washington State enacted a Domestic Partnership Law that provided
significant rights for our same sex couples, rights similar to those of
to the legal rights of married couples.
Then this March, the
State Legislature passed a measure expanding that law to include many,
many more rights that were previously granted only to heterosexual
married couples. In addition to getting rights to Gays and Lesbians,
Washington's laws allows opposite sex couples over the age of 62 to
enter a domestic partnership as well.
So many people see those
changes in our law as a step in the right direction toward valuing all
families under the law, but our speaker today has really much more to
say about what it takes to genuinely value all families under the law.
Polikoff is a Professor of Law at American University Washington
College of Law, where she teaches in the areas of Family Law, Civil
Procedure, Sexuality and the Law. Previously she supervised Family Law
Programs at the Women's Legal Defense Fund, now known as the National
Partnership for Women and Families, and before that she practiced law
as part of a Feminist Law Collective.
For 30 years she has been
writing about and litigating cases involving Lesbian and Gay families,
and her articles have appeared in law reviews. Her history of the
development of the law effecting Lesbian and Gay parenting appears as a
chapter in the book, "Creating Change: Sexuality, Public Policy and
She helped develop legal theories in support of
second parent adoption and visitation rights for legally unrecognized
parents, and on and on. There are many, many activities and cases that
I'm sure she may even tell you about herself, so I don't want to steal
But importantly she just published a book which is
actually available here, which is called "Beyond Straight and Gay
Marriage: Valuing All Families Under the Law," and in it she explores
what that takes.
I'm just going to quote her once, not from her
book, but from an editorial in the Los Angeles Times in March of this
year entitled, "Marriage Isn't the Half of It." In that article she
wrote that, "The quest for marriage rights has obscured a more
fundamental problem in the law. Marriage is a bright line dividing
relationships from that matter from those that don't, and it shouldn't
She further stated that, "Marriage is no longer the only
way that people organize their families and relationships. State
recognized Domestic Partnerships aren't a good legal dividing line
either, and those just extend a few more people without questioning why
such couples have these legal rights in the first place."
what we can gather I guess from her legal work and her work in the
academy is, that she's both a scholar and an activist on these issues.
We are fortunate to have her share her thoughts with us today about
value and families.
So without any much more, I ask you to join me in welcoming Nancy Polikoff.
Thank you, Michele. I want to thank Lisa Kelly for helping to
facilitate my getting invited here, and Michele and Ann for making it
possible. It's really a pleasure to be here, and get to talk to all of
told me I could talk for 45 minutes, and then do questions. My guess is
I'm going to talk a little shorter than that, because I actually really
like to take questions from people and have the conversation go
wherever you guys would like it to go. So, I'm going to start with some
Ronnie has a serious medical condition, and can't get
to the doctor on her own because she suffers blackouts walking in the
street. When her partner of 20 years asks for family medical leave to
take Ronnie to her doctor's appointments her employer denies her
Eugene did not come home from his job on the 102nd
floor of the World Trade Center on September 11, 2001. When his partner
of 14 years Larry, applied for Workman's Compensation Survivor's
Benefits, he learned he didn't qualify for those benefits, which might
otherwise be paid to Eugene's estranged father.
So, these two
stories may sound somewhat familiar. They are two of many examples of
the kinds of stories that spur Gay rights advocates to battle for
access to marriage.
If Larry and Eugene had been married they
say, "Larry would have received benefits." If Ronnie and Elaine had
been married, Elaine would have received leave.
So the harm in these narratives is caused by the denial of access to marriage, and therefore the solution is marriage equality.
I wrote this book to tell these stories in a different way. When I look
at Larry and Eugene, and Ronnie and Elaine, I see a legal system that
harms unmarried couples of any sexual orientation, as well as single
parents and their children, extended families, and anybody else who
forms relationships of emotional and economic interdependence that
My solution is valuing all factors through
matching laws that now privilege marriage to their purpose, and after
that being able to include within those laws all of the different kinds
of relationships that are necessary in order to achieve the purpose of
I'm exstrongd about this book, because it shows how the law can value all the families and relationships that people value.
exstrongd about it, because it shows how to foster the economic security
and the emotional piece of mind that all people need without
Amazingly enough I discovered in doing
research for this article that our legal system is capable of doing
this right now, so consider this story:
On November 27, 1978
openly Gay San Francisco supervisor Harvey Milk, the first openly Gay
elected official in a major U.S. city was assassinated by a former
supervisor who also murdered the city's mayor. His surviving partner
Scott Smith received Worker's Compensation Death Benefits.
and Harvey were not married; they were not Registered Domestic
Partners. Registered Domestic Partnership had not been invented in
1978, and it didn't come to San Francisco until 1989.
successful because California does not base Workers Compensation Death
Benefits on marriage. Had the World Trade Center been a landmark in Los
Angeles, Larry and all of the other surviving same sex partners would
have received those benefits.
If you haven't heard of Harvey
Milk you will soon, because Sean Penn is playing Harvey Milk in a major
motion picture that's due to be released in November to coincide with
the 30th anniversary of his assassination.
I don't know that
people will be talking about his partner Scott getting Workers
Compensation Death Benefits, but that's just going to make you guys
really smart when you can tell your friends that.
As for Elaine,
if she worked for the federal government right now, she could use her
own sick leave to take Ronnie to her medical appointments, and that's
because federal government employees can use their sick leave to take
care of anyone with whom they have a close association that is the
equivalent of a family relationship. Laws like these solve real
problems without carving out special rights for marriage.
what I want to do here is differentiate between civil rights, and good
family policy. For Gay men and Lesbians from a civil rights
perspective, marriage is one of many good fights. It's about equality,
and equality is a good civil rights goal.
From a family policy
perspective, marriage is the wrong fight. It's a fight for something
that isn't necessary if we can implement the laws that value all
families, and it isn't sufficient even for LGBT people because it fails
to capture the importance of LGBT relationships other than marriage.
And for all people--all LGBT people, and really, all people, whatever
their family form--they deserve the economic security and emotional
peace of mind that all people want.
So the book is a road map to
get the rights that we want and need, whether we get marriage or not.
And this includes assuring the wellbeing of children, compensating for
the loss of an economic provider, providing for care-taking leave and
other leave activities that are necessary to care for loved ones,
making sure that doctors and hospitals know who to listen to if we
can't make our own medical decisions.
What I'd like to do is
spend a little bit of time giving you my idea of how we got to where we
are today, when the battle for marriage equality appears to be the
principle if not the only family-policy agenda of the gay-rights
So, early gay-rights advocates emerged around 1970,
the early 1970s, at a time when feminism and the sexual revolution were
completely transforming family life. And in that context, gay-rights
advocates joined a chorus of voices in support of diverse family
structures, working in coalitions to assure greater justice for all
families. At the time, marriage was considered part of the problem, not
part of the solution.
But those times were followed by a
dramatic right-wing backlash--a backlash against feminism, a backlash
against gay rights, a backlash against reproductive freedom, a backlash
against women having children without fathers. And out of that emerged
a self-described marriage movement, both religious and secular, making
the claim, bogus as it is, that the decline of lifelong heterosexual
marriage is responsible for all of our social problems.
And I do
not say that hyperbolically, because it is in fact what they say.
Poverty, crime, violence, substance abuse, illiteracy, homelessness,
chronic illness, infant mortality, and the list goes on from there, are
all attributed, by the right-wing marriage movement, to the decline of
lifelong heterosexual marriage. In other words, if everybody would get
married and stay married in heterosexual relationships, all of those
problems would disappear.
Now, it turns out that that movement
has, over the many years that it's been around, gained increasing
currency, to the point where some of those who were its strongest
proponents outside out of government are now inside of government,
where, for example, they distribute $750 million taxpayer dollars for
And in my city, Washington, DC,
the latest manifestation of that is that we have full-length
bus-shelter posters with pictures of brides and grooms and little
snippets that say things like "Marriage works." And the organization
that is responsible for those posters, when I sort of traced them back,
received $5 million in government funding last year. Imagine what $5
million could do in Washington, DC, if we were actually trying to solve
family problems with it.
But marriage promotion has become a
staple of cultural currency, and the general notion that marriage is a
weaker institution and that it's really bad for everything in society
has led to the notion that marriage should be strengthened.
that rhetoric has affected how the gay-rights movement argues for
access to marriage, and leads same-sex couples and their advocates
often to emphasize allegiance to the institution of marriage and to
seek marriage equality in the context of strengthening the institution
of marriage, as though that rhetoric did not have these other
connotations of a much larger ideological assault on feminism and
diverse family structures, and recognition of the importance of family
lives, however they're constituted, to everybody.
So we are
dealing in that social climate at the moment. One of the reasons why I
wrote this book is because I discovered, year after year, among my own
students and others whom I would talk to at law schools around the
country, that essentially they had grown up at a time when the fight
for marriage equality was so prominent in public consciousness that
they believed that the only thing wrong with marriage was that same-sex
couples did not have access to it, and the only thing important to
meeting the needs of LGBT families was allowing same-sex couples to
And so they believed that, by supporting marriage
equality--which they all did, at least the ones who came to my
talks--they believed that they had covered the field in terms of their
participation and involvement in a social-justice movement. And after I
would speak to them and what I would say would resonate with them, they
would say, "Why haven't we heard this before?" So I wrote the book so
at least somebody would hear it.
And also, my answer is: you
haven't heard it because this is how the energies of the
marriage-equality movement have been funneled, and because the backlash
against diverse family forms by the right wing is a very powerful
So, my basic argument is that marriage should not be
the dividing line between the relationships that the law counts and
those it doesn't. And it shouldn't be the dividing line, either, when
same-sex couples achieve a status of civil union or registered domestic
partnership that is essentially the state-based rights and
responsibilities of marriage by another name.
Now, I do believe
in equality. So, actually, I am one of those people who think that
creating a state-based institution with a different name is done solely
for the purpose of demeaning the relationships that lesbians and gay
men have and treating our relationships as though they weren't worthy
of the name of the relationships that go with heterosexual marriage. So
I'm not happy about that.
But for purposes of the notion of the
law creating a bright dividing line, marriage and domestic partnership
or civil union do the same thing. If you opt into that structure, you
get a whole bunch of special rights. And if you either don't opt into
it or your family structure doesn't look like that so it's not an
appropriate one for you anyway, you get nothing, in spite of whatever
needs you have that are connected to economic security and emotional
peace of mind.
So, I'm going to try to spend a few minutes
explaining to you why I think that the argument I am making is actually
not a brand-new break but a logical and just extension of changes that
were made in the law a long time ago. And to do that, I have to ask you
to imagine that we're sitting here 40 years ago today: April 1968.
know we wouldn't be in this building, but just imagine it is 1968, and
I'm talking to you about the law of marriage, and the legal meaning of
marriage, the legal significance of marriage. This is what I would have
said to you.
Number one, the law of marriage creates and fosters
separate spheres for husbands and wives--distinct responsibilities that
vary depending on whether you are the husband or the wife. And those
operate in tandem with the same kinds of classifications in the public
Perhaps most visibly, I can convey this to you by
imagining that you open a newspaper--because we didn't have Craigslist
in those days--and you look in the help-wanted ads, and they say, "Help
Wanted: Male. Help Wanted: Female." So you have completely separate
spheres for men and women, inside of marriage and outside of marriage.
And the law sanctions those and, in fact, insists upon them.
born outside of marriage are second-class children, as are their
parents. They do not have the entitlement to the same rights in our
society as children born inside of marriage. That, it turns out, is the
greatest penalty the law conveys on sex outside of marriage. Sex
outside of marriage may be criminal in most places, but those laws, at
least if you're heterosexual, are not as likely to be enforced. What's
going to be enforced of the prohibition on sex outside of marriage is
the treatment of children born to unmarried women.
marriage is a lifelong proposition, and unless you're willing to lie in
court, which more and more people were willing to do; your marriage
can't end unless one of you is innocent and the other is guilty of a
marital fault, very specifically delineated, and the innocent person
wants the marriage to end.
So, that would be the picture of the
law of marriage 40 years ago today. And I think you all know none of
that describes the law of marriage today. In fact, within a decade,
everything I just said to you was completely exploded and a revised set
of laws were put in the books discarding the gender script, equalizing
the legal status of children born outside of marriage, and making
no-fault divorce the norm.
Now, these changes didn't come about
without some fuss. And today, I'm just going to talk about one piece of
that because I think it's the piece that people think about least. I
think most people have a pretty good idea that it once used to be much
harder to get divorced, and you needed some kind of fault, and now we
have no-fault divorce. And I think most people have some idea that the
law used to discriminate against women in the family and the public's
So, I think it's less commonly understood just what it
meant to have two classes of people based on whether they were born to
a married woman or born to an unmarried woman.
So, let me tell
you again what it would look like about this in 1968. So, in 1968, a
woman named Minnie Glona lost her 19-year-old son in a car accident.
And a woman named Louise Levy died when multiple trips to the doctor
resulted in no tests being done, and therefore no diagnosis of a
medical condition that otherwise would have been treatable. So she
died, leaving behind five children.
Well, her surviving
children, and Minnie Glona as the survivor of her son, filed for
wrongful death compensation, but their lawsuits were thrown out of
court because in Louisiana in 1968, if a child was born outside of
marriage, that mother could not recover for the death of her child, and
the children could not recover for the death of their mother. And the
courts in Louisiana upheld those statutes and threw out those lawsuits.
a law professor from the University of Illinois, Harry Krause, had made
it his mission as a matter of civil rights to try to right the wrong of
the treatment in this country of children born outside of marriage. And
he spearheaded a litigation strategy that included taking these cases
to the United States Supreme Court and challenging the
constitutionality of such laws.
So, Louisiana defended its laws
in the United States Supreme Court using language that, if I just read
you this quote that I'm about to read you today with no context, you
would think it had been written yesterday by today's right-wing
Louisiana said, "We don't mean to
discriminate against anybody, and we are not trying to punish anybody.
We are just trying to encourage marriage.
"Since marriage, as an
institution, is fundamental to our existence as a free nation, it is
the duty of Louisiana to encourage it. One way of encouraging marriage
is granting greater rights to legitimate offspring."
Supreme Court of the United States said that discouraging sex outside
of marriage and encouraging marriage were no longer constitutionally
sufficient reasons to discriminate against a family structure that was
organized around something other than marriage. And that court decision
in 1968 is what I like to call the Revolution of 1968 That Nobody's
Sandwiched in between the assassinations of Martin
Luther King and Robert Kennedy with the streets of Paris filled with
protestors and our own version of that going on in cities of this
country, the Supreme Court issues a decision that was the beginning of
the end of illegitimacy as a legal category.
And make no mistake
about it, it was a revolution, because for centuries it had been taken
as a matter of course that you could treat children born outside of
marriage and their parents in a completely different way from how you
could treat children born inside of marriage and their parents.
nobody would do that today. It is well understood that marriage is the
wrong dividing line for judging the value of parent-child
relationships, and therefore, you cannot distinguish between married
and unmarried relationships, with children, in the way that once was
taken as a matter of course in the law.
My argument is that we
need to take that the next step further and recognize that the laws
that now grant special rights to those who marry distinguish between
married couples and everybody else at a time when marriage is no longer
the major organizing force of people's families over their lifetime.
demographics have changed, and the laws that now carve out these
special rights for marriage also do so in a way that looks so natural
as though they naturally were intended to provide a perk to married
people that unmarried people don't get that it obscures, actually, why
we have a number of these laws.
And I'm just going to give you
one example of that, one bit. Well, I'll use the workers' compensation
model. Really, many of the economic benefits that go with marriage can
be talked about in the following way.
So, wives were once
dependent upon their husbands, economically. They had to be because,
for a really long time, women had no independent legal existence once
they married, so of course they were dependent upon their husbands.
when that law started to change, and it wasn't completely undone until
about 1980 where, once again, Louisiana was the last state to continue
to have a statute that gave men control over all of the money in the
family, so we're talking about some of this rather recently, but during
that period of time, of course married women were dependent on their
husbands. And even when the law didn't mandate it, as a practical
matter, married women were dependent on their husbands because they
didn't work outside the home.
A case that later got to the
Supreme Court on workers' compensation benefits was a case from
Missouri. The law that was being tested there was enacted in 1920.
Seven percent of married women worked outside the home.
Social Security, an area in which not only do married couples do well
but actually single-earner married couples, very highly paid men and
not-very-highly paid or not working at all wives, actually make out way
better than any other family form including lifelong marriages where
both partners earn the same amount of money, when that scheme was put
into place in the late 1930s, 15 percent of married women worked
outside the home.
So, all of these laws originally were about
dependent wives and income-earning husbands, and the way they worked
was the benefits went to wives and widows. They didn't go
gender-neutrally to spouses, so Social Security survivors' benefits
went to wives.
If you happened to be a working woman, and
therefore entitled to Social Security as a worker, when you died, your
husband wasn't entitled to anything. The law wasn't set up to deal with
that. The law was set up to deal with the norm. The norm was married
women didn't work outside the home; they were dependent on their
husbands. So there were these gender-based schemes.
those of you who have taken sex discrimination and the law or read some
of the specific cases in constitutional law, you know that eventually
all of those cases went to the United States Supreme Court because,
even into the 1970s, if husbands or widowers could get benefits, they
had to prove that they had been economically dependent on their wives
in order to get those benefits; whereas wives automatically got them,
widows automatically got them.
So you all know what happened.
The cases went to the US Supreme Court in the 1970s. The US Supreme
Court found them all unconstitutional sex discrimination. Well, what
did that mean? It meant that the federal government and the states had
to go back and write gender-neutral laws.
They could have
written laws requiring everybody to prove economic dependency in order
to be compensated for these benefits whose purpose had been to
compensate for economic dependency. And some states did, but most
states just applied them gender-neutrally to husbands and wives.
now, for workers' compensation death benefits, in most states, if
you're married and you die at work, your spouse automatically gets your
benefits, even though it's almost certain that, once upon a time in
that state, only widows got those benefits, not all spouses.
loved finding out about the workers' compensation death-benefit scheme.
There are some states that even require spouses to prove economic
dependency. And there are others, like California, that doesn't care if
you're spouses. They understand that the purpose of this benefit is to
compensate for the loss of an economic provider.
It is really
very simple, our workers' compensation system. It's a no-fault system,
designed to compensate somebody who's hurt on the job and to compensate
survivors of somebody who dies on the job. That's its purpose. It is to
compensate for the loss of income that's coming into that home.
in California, you don't need to be married. You just need to be a
member of somebody's household who was economically dependent, in whole
or in part, on that person. And there are a handful of other states
that do that also.
Spouses have to prove economic dependency in
order to get anything. And not-spouses have to prove economic
dependency, in whole or in part, and then they can get it also. Now,
the purpose of the law is to compensate for the loss of the economic
provider. That's the right way to do it. It's to pin the benefits to
anybody who was economically dependent, in whole or in part, on the
worker who died. And the fact that there is a functioning system now in
some states that actually does this is evidence that we can do it.
do not need to perpetuate and continue the idea that this is a perk of
marriage when that wasn't its initial basis. Its initial basis was in
the reality of family life in the early part of the 20th century.
Today, families look very different, and the laws need to accommodate
So that's an example of fitting a category of
relationships to the purpose of a law. If the purpose is to compensate
for the loss of an economic provider, you need to compensate the people
who were economically dependent on that person. Marriage has nothing to
do with it.
So it is that methodology that I use in the book,
basically going through all of the reasons why same-sex couples say
they want access to marriage. So, of course, all of the plaintiffs
couples in the cases present statements about themselves as a unit and
about what it is that makes them want to marry.
And so I read
all of those and tried to hit the high points of the issues that
same-sex couples say they want--which they should have. It's just that
they shouldn't be tied to marriage. And sometimes, some of the things
they want are actually things that would make them part of a larger
So, take Social Security as one example. As I said, the
people who make out in the Social Security system are married couples
where one person earns most of the money and the other person doesn't.
you have two equal earners, they will pay far more into the system and
get far less out over the course of their lifetimes, than the
traditional male, breadwinner family unit. And, there are lots of
really smart people working on how to change the Social Security
treatment of the family, and the gay rights movement could play a great
role in being part of that rather than just trying to focus on the
marriage equality piece.
What would happen if same-sex couples
could marry and be recognized for Social Security purposes? The same
thing. The single, high earner in same-sex couples with a low earner or
non-working spouse would get way more money over the course of their
joint lifetime, paying in way less money to the system, than the equal
earning, same-sex couples - just like equal earning, different sex
married couples today.
So, the desire to be a part of a system
that gives special rights to some people, in many instances, is going
to simply make the same-sex couples who marry part of a much larger
problem. If your focus is on equality only that makes sense. Including
all LGBT families, 50% of LGBT marriages would end in divorce, just
like close to 50% of different sex couples end in divorce.
I've been talking a lot about couples, and I do that in the book, but I
want to make sure you get a flavor for the other kinds of relationships
that are really disadvantaged in a system that gives special rights
based on marriage. So, consider this story: Private First Class Hannah
McKinney married just before she deployed to Iraq.
She had a
two-year-old child from a prior relationship. She left her child with
her parents to raise. She died in Iraq. The government paid a $100,000
death benefit to her surviving spouse, not to her parents who will
raise her child. It is a $100,000 benefit that goes to surviving
So, I tried to figure out why this might be. I
traced the law back that created this death benefit, and it was created
in 1908. It was a lot less money then, but imagine, what the country
looks like and what families look like, and what the law looks like in
1908. First of all, married women are dependent on their husbands in
many places as a matter of law. Men are in the military. Divorce is
uncommon, therefore, remarriage is uncommon. Men have no obligation to
support children who weren't born to their wives.
Congress thought - if it was thinking about it at all - that if a man
had surviving children whom he was legally obligated to support, they
would be living with his widow. So, by giving the money to the widow,
they'd be taking care of the children. Well, Hannah McKinney's story
shows it doesn't work that way today.
In that instance, you have
a perfectly capable, independent adult who has never raised children
with the deceased service member who gets a $100,000 just for having
been married to her. Meanwhile, she has a two-year-old child who will
have to be raised by somebody who cannot go out and work. That person
needs to be taken care of by some adult who needs the money to do that
and deserves the money more than the surviving spouse. But, because
marriage gets you these special rights, it overvalues that relationship
at the expense of children.
And, I give many other examples of
the way the law makes marriage the dividing line that disadvantages a
wide range of relationships other than just unmarried couples.
there's an example of a woman in a Section eight housing unit in New
York City, an elderly woman who wanted to have her 90-year-old father
move in with her so she could take care of him. She lived in a
one-bedroom apartment. She filled out the paperwork. The agency said
no--it would make her unit overcrowded. Had she married, her husband
would have been allowed to live with her.
Now, why do we have
occupancy rules? They are part of a zoning scheme that's designed,
let's just say, in general, to promote the kinds of neighborhoods we
want to live in and the kinds of environment that are good for the
people who live there.
So, if you need an occupancy limit on a
unit for that reason, it's an occupancy limit, but that unit was going
to have two people in it, whether it was a husband or a father. But the
law let her have her husband. And when it wouldn't let her have her
father and he moved in, she received a notice terminating her rent
Now, she got that turned around, but it took more than
a year and four hearings that she had to show up for before she could
keep her housing subsidy and have her father live with her.
we have, in every imaginable area of law, ways in which marriage
produces special rights to the disadvantage of unmarried couples, of
the way children are actually being raised, of people who form
relationships to live together as non-sexual partners that involve a
kind of economic interdependence that still leaves somebody vulnerable.
my concern about the direction of the gay-rights movement and its
struggle or marriage equality is that, where it is successful, it runs
the risk of being the end of the struggle, because once same-sex
couples can marry, or register as domestic partners, what is the basis
for arguing that they shouldn't have to, that the loss of an economic
provider should justify workers' compensation survivors' benefits,
whether a couple is married or not, because the purpose of it is to
compensate for the loss of an economic provider? It will be very hard
to do that.
And we are already seeing, in Massachusetts, some of
this fallout. There are very disturbing cases coming out of the
Massachusetts courts differentiating the rights of children based on
whether their lesbian-couple parents married or didn't marry, because
marriage is available there as a second-parent adoption, but in
instances where the law would have created a presumption based on
marriage, an unmarried lesbian can walk away from a child and not make
any child-support obligation.
And it's not that GLAAD, the
gay-rights group in Boston, is happy about that. They're not. They
don't want the cases to turn out that way. But they are having trouble
articulating forcefully a theory to make marriage not necessary, to
make marriage not the dividing line, having argued, the way I started
out this talk, that there are all of these injustices and the way to
correct for the injustices is to allow same-sex couples to marry.
also seen in Massachusetts that employers have stopped offering
domestic-partner benefits. They say, "Straight couples can marry. Gay
couples can get married. You've got to get married, or you can't cover
Salt Lake City, Utah, lets its employees cover
any one adult living in their household in an economically
interdependent way, and that person's children, for employee benefit
purposes. So, you can cover your unmarried different-sex partner, your
unmarried same-sex partner, or, if you're a lesbian and a gay man and
you're living together to raise a child together but you're not in a
sexual relationship, you can cover each other.
If you're two
single mothers who think that by combining your economic and emotional
resources, you will be better able to raise your children, and one of
them works for the city of Salt Lake, she can cover the other woman and
all the children in their household on her employee benefits.
that's a development in a state hostile to gay rights--in a place where
they actually don't want to do things in the name of gay rights. But
nobody said anything anti-gay when they passed that benefit. Instead,
the city-council members said, "You know, our single employees have
families also. They have responsibilities also. They have people that
they need to take care of also, and we want to make sure that all our
unmarried employees get to do that, just like our married employees do."
Massachusetts has marriage for same-sex couples. If you're a couple and
you don't marry, you may not be able to get domestic-partner benefits.
If you're not a couple, it doesn't even work plausibly that you could
cover an economically interdependent unit on your medical benefits. But
if you work for the City of Salt Lake, you can.
So, I'm actually
optimistic that some of the things on my Valuing All Families agenda
can be achieved in some places that are hostile to gay rights. And I'm
keeping my fingers crossed that in places that are less hostile to gay
rights, somebody will figure out before its too late that some of these
changes need to be made in the law so that we just don't wind up with
another group of people--same-sex couples who marry--who have the
special rights of marriage to the exclusion of everybody else.
I always like to talk about the state where I am. And I actually have
lots of things to say about Washington. So, you guys live in the only
state where, when a couple lives together as a unit and their
relationship ends, the court will consider dividing up the property
that they have accumulated, whether they were married together or not.
This is the recommendation that the American Law Institute made a few
years ago. It doesn't exist anywhere else.
I have a chapter in
the book on how they do it in other countries. Trust me, they do it
differently--especially in Canada, where nobody has to get married for
anything legal. I don't know if you guys know that, but couples in
Canada can choose to marry because it means something to them. Nobody
has to marry for the law. There's almost nothing in the law that
changes, whether you're a married or an unmarried couple in Canada.
no place in the United States can you ask for some temporary support if
you have committed yourself to a family unit and then your relationship
breaks up and you're going back into the workforce. No place in the
country, including Washington state, can you ask for that under the
same circumstances you could if you were married. In British Columbia,
just a little bit north of here, they've been able to do that since
1972. So that's just a contrast, to show you how it is possible to do
Can I see a show of hands as to how many people
here know what the Washington State Advance Health Care Directive
Registry is? And if you were with me at lunch, don't raise your hand;
that doesn't count. Three people. OK.
So, you guys, it's not the
best model in the country. Idaho actually has a really good one. You
should learn from your neighbors. And again, not a gay-friendly place.
the single most-frequently strongd reason why same-sex couples want
access to marriage is that they are terrified about what will happen if
one of them is hospitalized. And they have good reason to be worried
about it because the stories are completely outrageous, including
stories in some places of people who had documents that they had drawn
So let's just agree: this is a big problem. Could we also agree that marriage is not the solution to this problem?
of all, unless couples are never going to leave the state that allows
them to marry, it's not going to do them any good. I mean, you guys who
register as domestic partners here, just go to Montana and see what
that gets you if you think that it'll get you something in a hospital
in the state of Washington.
So, considering that more than half
the states in the country have constitutional amendments that ban
same-sex marriage, and more than half of those ban recognition of any
unmarried couples, gay or straight, it's going to be a really long
time, and not in any of our lifetimes, until a married, same-sex couple
could travel all over the country and be able to say, "Well, we're
married, " and expect to get to make medical decisions. So marriage
isn't the answer for that.
Not only that, it's the wrong answer.
There's a study in Detroit of people who had medical powers of
attorney. 50 percent of the married people did not pick their spouses.
in Chicago, at an outpatient clinic where they did a study of people
who didn't have them, almost [inaudible] in that study said they would
fill out the forms that day if their doctors asked them to, 33 percent
of the married people said they wouldn't pick their spouses.
there are all sorts of reasons for that. Every single person in the
country, everybody, from the most right-wing ideologue to whoever you
think of as the opposite of that, will agree that there is only one
goal of any system that creates a surrogate medical decision-maker, and
that is for that person to make the decision that you would make
yourself if you were able to. That is what everybody wants. Everybody
believes that the person you choose should get to make the decision if
you choose somebody.
So they're not, the right wing is not going
after the 50 percent of those people in Detroit who don't want their
spouses to make that decision. It is a matter of personal autonomy.
what we need is a system that gives that right to everybody, including
all of the un-partnered LGBT people, who actually may not want the next
person on the list under the default statute to get to make those
decisions for them, who may be far away from their families of origin,
who may have moved to Seattle or another gay-friendly place to get out
of the places where they lived close to their families of origin. I
care as much about my un-partnered LGBT friends as I do about my
partnered ones who might marry or register if that was available.
the only way to make sure that everybody has access to the peace of
mind that we all deserve of knowing that the right person would make
our decisions is to have an easy-to-use healthcare directive registry
that culturally becomes understood as part of what it is to be an adult
human being. You get the information from your primary care doctor. You
get it when you get your driver's license. You find out about it, and
everybody knows that they can fill out forms for free and send them to
a registry for free and get back a wallet card that they carry with
their driver's license.
I personally, actually, want a notation
on drivers' licenses as well, but in Idaho, you've got a picture of it,
they have a picture of it on their website, you get a card with a
scan-able bar code. And I understand their scanning system isn't quite
running yet, but it has numbers.
You type the numbers into a
computer that's a secure database for the Secretary of State's office,
and that doctor and that hospital get the Advance Directive Registry on
the screen in the emergency room in seconds, in real time. Now they
know what you want, and they know who you want to make decisions if you
can't make them yourself.
There are a number of states that have
these. Washington State has it; it's not quite as user-friendly as
Idaho, but I want all of you to go home tonight and write these, unless
you're absolutely sure that, if you're married, you want your spouse to
do it, if you're not married and you have adult children, that you want
your adult child to do it, if you're not married and you don't have an
adult child, that you want your parents to do it.
If you have
two parents and you only want one of them to do it, you need to fill
out the form. If you've got siblings and you want only one of them to
do it, you need to fill out the form. It is not hard, and you have a
registry here, so you're in better shape than some places.
I talked at the University of Arizona, I did the same thing; they
actually have an excellent registry. Almost nobody in the room had
heard of it.
This is a gay rights issue, as far as I'm
concerned. And it turns out that there are lots of groups around the
country who care about this, lots of them. The gay rights movement used
to work in coalitions with groups like that. This is the way to solve
the problem that drives same-sex couples to seek marriage more than any
other single problem, and it's a way to solve it for all LGBT people
and really, for everybody.
And we can do it, I think if we get
enough states to do it, we can get a national one, which is what we
need. We need a national database that's very easy. And there are
moments when this becomes possible. Terry Schiavo proved that being
married isn't the answer. It proved that sometimes people will fight
about it, but most times people won't, they'll just go by whatever the
system is. We need to make a system that assures the emotional peace of
mind of all people, that's easy to use.
Now, there's one other
thing I would do with that system, and it's done in the District of
Columbia, and that is, you've got to have a default law because no
matter how many times you tell the constituency that you're connected
to that it's really easy, you can fill it out and send it in, and it's
free, and you don't need a lawyer, there will always be people who
don't do it, there would be people who don't have drivers' licenses, so
it doesn't help that they have a wallet card, they don't have a wallet,
whatever. OK, so you have to have a default statute.
District of Columbia has a default statute. Spouses and domestic
partners are treated equally; you do not have to be registered. If you
are living in a committed, familiar relationship with somebody, that
person gets to make decisions if you don't have a spouse, first line.
there's the usual order that you might expect, adult child, parent,
sibling, et cetera. On the list after that is close friend. I didn't
make it up. A group of really smart medical professionals and the
people who care about medical care and death and dying issues actually
figured out that friendship matters. 20 states have statutes that
include close friends on the list.
Now, the problem is they're
farther down the list. The District of Columbia has a statute that says
this order is just presumptive. If somebody lower down on the list
knows the person better, they get to jump and make the decision.
it may mean some people have to go to court, but like I said, Terry
Schiavo proved that some people are going to go to court. There's no
way to avoid that. You've got to give somebody the tool to say, wait a
minute, you, distant sibling, actually don't have this right. I, who
have cared for this person, who's my closest friend, through all the
years of her illness, I'm the one who gets to decide.
And if you
have a statute like that, and you have medical personnel trained to
know that that's the statute, which is another part of it, you have
somebody who has the ability to actually make what would more likely be
the decision that the person would make themselves.
isn't any reason why I have to be going around telling people,
including people very active in gay rights, that there are these
statutes, that there are organizations that are fighting for these
advance directive registries, that there are model statutes that
already include close friends. We should have people who care about gay
and lesbian families plugged in to what's going on, with...
one of my funniest stories about writing this book is the day I
finished it, I went for my checkup, but that's because I had no time to
go to the doctor while I was writing the book, so literally, I timed my
annual checkup for the day I had to turn it in.
So the doctor
says, how are you, what have you been doing? And I'm like, "Oh, I've
been writing this book." I've had this doctor for a long time. "I've
been writing this book," you know. "And what's it about?" OK, it's
about how marriage shouldn't be the dividing line between relationships
that can, relationships that do that.
And she says to me, "Oh,
we wrote a statute about that for the District of Columbia on health
care decision-making." It turns out my primary care doctor was on the
committee that did it. And she said, "You know, I think we did
something unique in our statute." I'm like, "You did. I can guarantee."
know, it's like, doctors and medical professionals trying to solve a
real problem knowing how people really live came up with the idea that
friends matter and that sometimes they know patients better than their
siblings or parents do.
So, those are the kinds of things I'd
like to see happen, and I think I'll stop now and see what people want
to talk about. Thank you.
I really appreciate your energy and your focus on researching the
history of this stuff rather than going off the deep end on theory. I
think it's really valuable.
two things: One, it's interesting you use "special rights", because
that, in my opinion, originated with the Christian right wing.
That's why I use it.
OK. Secondly, it still seems to me, even though you talk about the
un-partnered gays and lesbians, most of this book is focused on people
in relationships and emphasizes relationships.
as someone who was very active in the gay movement for years and is now
totally alienated from it with its focus on marriage and the paucity of
its range, it still bothers me that maybe what, 25 to 30 percent of gay
and lesbian couples are couples with children? They figure they want to
get a piece of this pie that then all the single people in this country
should pay for, right?
And it seems to me you're still
privileging relationship. You're drawing a line between those in
relationships and the great unwashed who are on the outside of the
relationship. And it seems to me to bypass a lot of social equity and
economic issues. I'm sure you've heard this before.
Well, I have a couple of responses to that. The children thing and the
marriage thing are completely separate. I spent most of my career
working on LGBT parenting legal stuff, and the gay rights groups in
Massachusetts still tell all the married couples there that they still
need to do second-parent adoptions of their children. We created a
mechanism to protect parent-child relationships, and you have to do it
if you're a same-sex couple. Marriage doesn't work. It isn't protective
the way that works better than marriage is the way that doesn't have
any connection to marriage, and parent-child relationships aren't
supposed to depend on the marriage of the parents anyway.
think there may be something I disagree with of what you said. I mean,
I feel like single people do feature prominently in my book, like the
fact that single people are entitled to have their own health care
wishes met when they are hospitalized, and that their friends matter if
that's the person they want to ride with them in an ambulance or to
visit them in the hospital.
I think the way I might differ with
you is that I start with what the purpose of laws are, and I do think
that providing for the economic wellbeing of children is a valid
purpose because those children can't provide economically for
themselves, and they are all of our future. Even if you don't have
children, they are the people who are going to pay your Social Security
benefits when you're collecting benefits as an older person.
I actually think that there are some laws, if they're designed for the
economic wellbeing of children, that may look like they disadvantage
people without children, but I'm OK with that because of what my value
system is. You may have a different value system and that's OK, that's
a conversation that we could have.
None of that has anything to
do with partners or marriage, that has to do with who's actually
raising those children. I think if the government is giving death
benefits to compensate dependents of somebody who dies, then it should
go to the people raising their children, and if somebody doesn't have
children, maybe they don't get that benefit.
On the other hand,
if the purpose of the benefit is the government saying thank you for
your service, "I'm sorry you died in the line of duty, thank you for
your service, " we're just going to give you the money, then it should
be within the control of the person to leave it to whoever they want,
and that should be equalized, because the purpose of that isn't caring
for dependents, it's like, OK, you died, we'll give you $100,000, do
what you want with it. And then that person can leave it to whoever
they want, if they're single or married or what.
I want to try to say this kind of simply. Durable power of attorney is
a really, very important thing in intercultural situations where the
parents of the other family may not approve of the relationship that
the person's in.
have to say this without being emotional. My lover was in a coma for
about four days, and the hospital decided they should disconnect him,
and the family had come in and was to make decisions about him, and
told me that I would only be able to be with him for few hours, and
then they would make the decision about unplugging him.
turns out that he came out of the coma, and for a week or so, I was
with him, and then the parents decided that, the father, essentially,
that I wouldn't be allowed to be around him anymore, and I was kicked
out of the hospital. And I'm in the middle of a situation right now
where I'm trying to just get in contact with my guy.
And as much
as what the legal situations are set up for, gay people here, it's
really difficult to navigate through all that. It's very important that
people understand the durable power of attorney because if we had done
it, we had discussed this, then we never would have been in this
I want to thank you for doing what you're doing in bringing this up as a topic.
I'm sorry. And it would be the same whether you registered or didn't
register; married or didn't, you would still be in a position where you
should be the person who's able to make those decisions.
Because he doesn't care for his parents or his stepmother, or call those people his family.
If there's anybody, if there's a Washington State person here who
thinks they have any advice for that person, you can talk to him later.
I don't, I can't do that. Are there comments, questions? Yeah.
My question is about the healthcare directive registry that you talked about. Is that transferable out of state?
Well, that is a database question. I mean, as I understand it, the
hospitals have to have access to the database where they're kept, and
so if it's only at hospitals in Idaho, I mean, you can go to the Idaho
Secretary of State website, and you can get to the point where it says,
OK, we'll show you that power of attorney if you type in these numbers,
but you have to know what the numbers are to type in, and your hospital
has to somehow be connected to it.
I think it may be that an out-of-state hospital would have to go
through another step to figure out how to do that. That's why I think
we need a national one, but there are a number of state ones. I think
if we can get a critical mass, then all those state ones will want to
be linked, and that's ultimately what we have to have is one that
Well, I guess I'm just thinking that when it comes to domestic
partnership in this state, one of the things that [indecipherable] to
put on a couple of panels, and one thing we say is you still need a
healthcare directive if you ever plan on leaving the state.
And even if you like live in southeast Washington, you'd want one because it gets into Oregon right here.
And so, it's important that you still get a healthcare directory, but
if you had this card, would you still advise people that they need a
The card is, you've done the healthcare directive. It's just on file
with the Secretary of State. The card shows that you have one. So it's
about how easy it will be for the hospital to plug into it, and it may
be that the hospital in another state can't, but that wallet card is
still evidence that you have filled out a healthcare directive and it
is registered somewhere, it just might not be as easy as it is in-state
to type into it.
I'm sorry, I meant to check before coming here, there's something about
the Washington State one, I don't remember if it's that you have to
call to get it, that you can't automatically get it by computer.
There's something about it that's not as good as what Idaho has or what
Arizona has, but it's still pretty good. And I think maybe they charge
$10 or $15, which they shouldn't do, it should be free because it's a
public service for everybody.
So, hopefully someday they'll be
linked. I mean, there are a lot of people who don't like the default
statute, wouldn't want the result that the default statute has, so it's
a cultural change. Yeah. Marsha.
If you signed a healthcare directive in Washington State and you took
it with you to Montana, they would still need to honor that? Not
I mean, they should because whatever the Montana, there's likely to be
a Montana statute that at least makes clear that you can have these. I
mean, technically the answer would be in the Montana statute, but there
is, I mean, there's one of the many tragic stories, and it's one of the
ones I tell in my book, was a couple who were from California who were
traveling in Maryland when one of them wound up hospitalized.
they were registered in California and had the paperwork, which did at
one point get lost, but the hospital never honored it. And it was a
complete outrage. I mean, they admitted later on that they made a
mistake. Meanwhile, the guy got put on a ventilator, which his partner
would never have done. And they waited hours until the mother and the
sister showed up, and that's when they let the partner in.
mean, these are real problems. I'm profoundly moved by the seriousness
of the problems. It's just that marriage isn't the solution to the
I first read your stuff back in the mid-'70s, when you were writing
about lesbian mothers--I think one of the first articles on that. And
back then, lesbian mothers were considered to be de facto unfit because
it was a sexual perversion, a psychological perversion, and a crime.
And so, of course they're unfit. And then I think it required slightly
moving in the best interest of the child.
of the things we've seen so often, arguing for gay and lesbian rights,
is, "Well, what's next? A man and dog, or bestiality?" But most
non-joking but serious.
Our current problem, that debacle in
Texas, where women and their children are being parted on the basis of
their marriage relationships that we don't approve of. I'm not saying
anybody approves of child abuse or anything like that, but there's no
proof. It's the same kind of hysteria that there was over lesbian
mothers, the same kind of hysteria that "If women live like that, they
can't possibly protect their children."
And I agree with you
that maybe marriage should just be like a hobby or something, something
people do, and really shouldn't be way in which we structure our
society. But would you then not have to say, "OK. Whatever these
relationships are, I'm not going to say that one woman and one man, and
one man and one man, and one woman and one woman are better than three
people or any other. I'm not going to say that anymore."
seems to me, if you really want to get marriage off the table as the
privileged status to be in, you've got to say, whatever relationships
people form, that's entitled to respect, and as long as children can be
raised in a healthy way, that's entitled to respect.
The way I get at that is just a little bit from a different direction,
so that rather than trying to redefine what the relationship is, or
what you would call it, I start with what the laws are and try to
identify what the purpose of those laws are.
mean, I often get asked about this question about more than two, and
it's a very good question. But the answer isn't up or down, yes or no,
do you recognize three or more people together. What it is, what law
are we talking about, and what's its purpose?
And then I'll be
able to give you my answer with respect to that law, so that if the
government, as it does in some instance, gives deceased public-safety
officers--firefighters and police officers who die in the line of duty
get a $250,000 death benefit. Its purpose is a thank-you. Well, that
person gets to designate who gets it. And if they want to split it
among people, that's nobody's business. You can divide that among three
One the other hand, there are some times when scarcity
may come into play. If you're trying to deal with scarce resources, you
might decide, as Salt Lake City did, one adult and all the children in
the house. So, if you actually live in a group of three in Salt Lake
City and one of you works for the city, no, you can't cover both those
other adults. But it's because you've picked the number-one adult, in
terms of dealing with scarce resources, and it may be that we have to
live with that.
We can have a conversation about priorities, and
it may be then that we decide: OK. We're only going to let you cover
one other adult on your employee benefits, and so you can live with
those other people, but we're not going to provide that there.
medical decision-making, you can pick anybody you want. You can name
more than one person--although I think that's kind of a bad idea,
because if you have two people who disagree, you have a big mess, which
is what happens now. If you don't name anybody and you have two parents
and they disagree, that's a big mess, too.
But I would let
people do it, and it's nobody's business what kind of relationship they
had. The point is you're saying who's going to make your medical
decisions for you.
So, rather than saying up or down on two,
three, four, or however many, and certainly, for child rearing, if
we're looking at the wellbeing of children, and whether decisions their
parents are making are harming them or not, then that's what the
criteria is, and it doesn't have anything to do with how many of the
people there are.
So I think, by starting with whatever law we
have that now privileges marriages and asking why and then seeing what
we're going to do with that, I think that is a way to get at what
you're asking. Does that work?
The scarcity issue. Because most of this is focused on children, the
scarcity issue becomes a problem, right? Because the example that you
used there, there was $100,000 if there were three or four kids and
different--I mean, it gets down to little bits. Like Social Security,
you get 750 if you have one child, or if you have 10 kids, they each
get $75. So is it really designed, at this point, to..?
And those are all conversations we should be having and making some
decisions about. I just don't want the bright line to be between
marriage and everybody else. I think that's the wrong line. There are
still questions about allocation of resources. I mean, I talk about the
Salt Lake City model, which I'm kind of fond of, but obviously the
answer to the health-care problem is universal health care that doesn't
have anything to do with relationship to somebody in a good enough job
to have health insurance.
even my own plan is just a stepping stone till we get what's ideal. And
if we were starting from scratch with Social Security, we might pick a
universal benefit for everybody. Or the European model is usually a
universal benefit, but then your employment might get you a bump up
above what everybody in the country gets just for being an old human
being. There's benefits based on old age.
So there are different
models for how you might do that that talk about restructuring our
relationship between the government and the individual. And I'd do that
a little bit, but not much.
I wondered if you've looked at the Native American communities at all.
One of the things that strikes me as you're talking about these issues
is, a lot of times, the family unit in Native American families is not
necessarily parents and their children, but aunts and uncles. And this
is certainly true in other cultures as well. It appears that whatever
and when those systems come in conflict with the sets of rules we have
that value or privilege marriage, there are tremendous conflicts.
Yeah. And we've made some progress in that area, but we need to be ever-vigilant. Exactly.
Can I take two? OK. [laughs] Yeah.
One being, what do we do with marriage? Well, what do we do with it?
And second of all, practically, how do we get to where you're
suggesting we go when, besides family law, the index of marriage is so
intertwined in so many areas of law--property, taxation, criminal
law--just across the board, there are references to marriage. So, in a
practical sense, how do we get to that? And that then comes back to my
question: do we just dispense with it?
Well, I'll do the second one first. The things that matter most to
people; I mean, I know about the 1,100 and whatever it's up to mentions
in federal law and the many in state law. But there are certain basic
things that matter most to people, and I actually think, in the book, I
was able to cover almost all of them, if not all of them, and say how
we could do each of those things differently. That's why the book
really does have a road map.
the exciting thing about it was finding these examples. I mean, when I
found out that Harvey Milk's surviving partner got death benefits, I
was speechless. I mean, I don't know about you guys who might have been
alive then and might remember it, but in 1978, his surviving partner
collected, I mean, that's a weekly or biweekly check for the rest of
your life to compensate for the loss of an economic provider. We're
talking 1978, I mean, this is like the historic icon in the gay
community. It completely blew me away.
So, we know how to do
these things, even if it's only one state that's done it, or these
isolated things like the definition in federal law about who you can
take leave to care for. So, I feel like I've put together an agenda
that if this were the law, it would actually solve the lion's share of
the practical problems that same-sex couples say drive them to seek
marriage. So I actually think it can be done.
question, I'll tell you what my answer is, but there could be a lot of
discussion about this. So it turns out, I figured out in all my sort of
looking around and research and paying attention to what people were
saying, is that marriage seems to matter a lot to many people, and
given that that's true, I don't know whether this is just me being
practical or whether it's actually humility on my part that I just
decided I wasn't going to tell people that they shouldn't want what
And so, I leave marriage as an existing status in
the law, although I do recommend that the name of it be changed to
civil partnership as a legal matter. Many states have changed the name
of divorce to dissolution. There's nothing in the statutes or the
documents that refer to divorce. I'm sure people in those states still
say they're divorced. I'm fine if people want to say that they're
married, even though...
And I'm talking for everybody. I'm not
talking for same-sex couples, I'm talking for everybody. I think the
technical name should be changed to civil partnership, that it's more
reflective of what that couple-relationship really is, and if we can
call it a dissolution on the backside, which is also partnership
language, let's just call it a partnership on the front side. And then
people can say they're married, and that's fine with me.
don't want it to be the bright line in terms of the legal treatment,
and so, you know, it takes me back to thinking about Canada, where
living together for a certain period of time gets you almost all of
what people get when they marry. So in Canada, when same-sex or
different-sex couples choose to marry, they're choosing to do something
that means something to them, for whatever reason.
litigated the basis for marriage in Canada on the basis of equality and
love. They argued for equality, and they had their plaintiffs say, I
want to show this way, I want to express in this way my love for my
partner. They couldn't litigate those cases on survivors' benefits
because they already got them. They couldn't litigate marriage in
Canada based on the parade of disadvantages that drive the litigation
here, because they didn't exist anymore, because that was taken care of
for everybody outside of marriage.
So, if we can do that, we
need equality for same-sex couples. I'd like to see it called civil
partnership and let people say they're married, and let it mean what it
means to them. And clearly, for some people, it means a lot.
mean, the people who've married in Massachusetts, the people who
married in places momentarily when it was legal and then had them
annulled, I've read what they say about it, and many of them say it was
transformative in their lives, and I actually do credit that as an
emotional matter. I just don't think it should have any legal
OK, I know you are the last question. You.
OK. As a student, I just want to check in with you because I've got my enormous [indecipherable] here.
So, I'm totally with you on marriage being the wrong line, but the
default rules have value, and you have to recognize that. I mean, we do
need default things. You recognized it in terms of the advance
what I'm hearing from you is default rules should track the purpose for
which the benefit was created. It seems to me like you're going back
and divining the purpose historically by looking at sort of whether
it's meant to be, you said, a gift, or replace an economic supporter or
whatever. And then, in the statutes themselves, what we have is
language where the plain language is effectuating a different default
rule that's a very imperfect proxy for the purpose that we think it
sought to effectuate.
So, in summary, everything I'm hearing
from you is about amending the statutes. I don't hear any kind of
judicial doctrine to institute a new canon on how we look at the
statutes. I'm hearing this as legislative.
It is almost all a legislative agenda, that is exactly right, but I actually think it's a doable legislative agenda.
want to say another thing, though, about what you said about default
rules. So, default rules are most necessary when people could pick for
themselves but don't and the law has to do something. And there was a
moment in time, last year, with you guys here, when I was optimistic
that the first domestic partnership law that you guys passed, and I
write about Washington quite a bit in here, and this is actually in the
last chapter of the book.
So, you guys lose marriage, you pass a
statute that, except for Washington state government employees, all it
did was give the various medical care decision-making rights and
I have a proposal in here that creates
exactly that kind of registry for any two people who want to register,
and doesn't call it anything related to marriage or sexual
relationships at all. I actually call it a "designated family
relationship registry" because if you think about those laws, intestate
succession and all the medical decision-making stuff, what the laws are
saying is you start out with a family of origin, blood or adoption, you
didn't choose those people. The person you marry is the person you've
chosen. That person is always at the top of the list.
I want a
default mechanism that easily, for efficiency basis, lets two people
put each other on the top of their list, if they want to, without any
connotation that would go with marriage or anything. It wouldn't
require living together, it wouldn't require anything except basically
we're choosing each other as family members, and we're going to let you
know in a way that is unassailable and unchallengeable, so we're going
to sign up the same way people, when they marry, sign up.
is the person I've chosen, this is my person. All those people who
don't have a person they would marry, if they could, some of them are
going to have someone they would pick as a family member. And I'd like
there to be a default rule that made that plausible.
So, I was
kind of hopeful that maybe that could happen here, but instead you guys
just added a bunch of other rights to it that just make it look more
like civil unions and domestic partnerships in other places as sort of
a marriage substitute. So if you're going to get on the valuing all
families track, you're going to have to...
They added old people.
Well, what do you think about that?
What was the question?
Adding people who are, different... But those are still for couples.
The idea is still that this is like your primary relationship person,
and that it is a sexually-based intimacy.
Transcription by CastingWords
think a lot of people don't understand the law, and that's why they do
that. They think you could lose your Social Security benefits if you
remarry, but that only happens sometimes, so I still haven't ever had a
good explanation. If somebody has it here, come tell me afterwards.
mean, I know you may lose some things in a will if your prior spouse
died, but you actually do get to remarry if you're over 62, and without
losing your deceased spouse's Social Security. If you have an answer to
that, Lisa, you can tell me later. It's just been a puzzle to me, and
there's never been a legislative history that I could quite get about
But I think that's the theory, and maybe it's opening the
door to let different-sex couples of all ages into a domestic
partnership regime, but whatever you call it, it's still an on/off
switch, and that's what I want to get us away from.
OK, you want me to stop. Thank you guys.