Talking Points
Harry D. Krause

Traditionally, marriage and the family served as the sole legally and morally permissible harbor for sexual activity. This (1) assured the birth into two-parent families of children as the natural and then (pre-pill, pre-abortion) unavoidable consequence of sexual activity, (2) provided the structure for socializing children by means of “role-division” between the marriage partners, (3) made role division possible by providing economic security for the stay-at-home-partner through legal support obligations as well as social and legal strictures against divorce, and (5) assured old-age provision for the marriage partners through their children’s reciprocal moral and legal support obligation.

Marriage was not so bad a bargain for society, certainly one justifying a variety of legal and economic benefits and privileges for the partners to marriage. Sensibly, the legal rules and social customs of marriage were tailored around these facts and goals. At some point, however, people began to notice that marriage was no longer quite so good a bargain for many women and some men.

Today, in ever-growing awareness of the problem aspects of marriage - primarily the growing risks and costs imposed on individuals - only a fraction of marriages meets the old-time definition and fulfills these old-time functions. Even then, divorce often cuts the idyll short. And our social security system, not to mention the welfare state in general, originally created to pick up the debris left by crumbling private obligations, has had the unintended , but unavoidable, side effect of rendering private obligations less necessary, thus loosening family ties further. Beyond that we see plainly that many of the legal consequences of one-size-fits-all marriage are quite incommensurate when applied to modern, alternative sexual and familial lifestyles.

Today, alongside a rearguard of traditional families, numerous types of partner-to-partner associations have sprung up to fulfill some of he functions of the traditional family, or indeed taking its place. Beginning with the landmark Marvin case in California, much commentary has argued - - and relatively few cases have held - that benefits (rarely burdens, such as support obligations) identical or similar to those of marriage should be extended to unmarried couples. More recently, the range of discussion has been extended to same sex partnerships, gay and lesbian.

Today, however, gays and lesbians are not just seeking alternatives to marriage - as for instance recently provided by the state of Vermont and Hawaii. They seek the status of marriage itself, as much for social recognition as for the legal advantages perceived in traditional marriage. The very definition of marriage is in question. This has created considerable backlash and controversy ranging from the federal Defense of Marriage Act to state legislation in more than 30 states that define marriage as legally possible between heterosexuals only.

To move beyond unpredictable single issue oriented case law, and to put new partnership alternatives into a socially constructive relationship to marriage, quite complex issues deserve more than a simplistic “yes” or “no” answer to the question whether the law should recognize unmarried heterosexual and/or gay/lesbian partnerships, or extend marriage, qua marriage, to the latter. These issues often are not, or not adequately, considered in current corporate/governmental/private practice as well as judicial and legislative legislation - or for that matter in academic writing. I’ll reserve specifics for our discussion.

More broadly, it appears to me that much of the current controversy and discussion is largely misdirected. Looking rationally at modern marriage, quite another conclusion suggests itself and points toward a solution that would remedy much more of what is wrong with modern legal marriage than solving just the gay-straight controversy:

On rational analysis, it seems to me that there seems to be nothing so much wrong with excluding same-sex couples from the definition of potential marriage partners, as there is very much wrong in allowing - simply through entering the legal institution of marriage - heterosexual couples a choice of legal consequences that in fact have no bearing on their life situations.

In short, rather than “equalizing” heterosexual and same-sex couples by legalizing gay and lesbian marriage in the traditional legal sense, the more sensible approach may well be to equalize their situations by largely de-legalizing marriage (in the sense of promising state-supplied legal benefits, as well as partner-to-partner obligations) if there is no significant change in factual circumstances from which society gains, or where there appears a compelling social need for intervention. Modern realities call for a substantial “decoupling” of the modern legal meaning of marriage from the traditional “cultural-religious-historical” significance of marriage. In accordance with its legitimate secular interests, society should define new legal “default” consequences of secular marriage narrowly and appropriately tailored to the realities of the life situation in question.

The archetypal example of a life-style-changing partnership, of course, is one where children are (or were) present, both in terms of a social need to protect children as well as to protect role-dividing marriage partners from undue economic dependency on their partner. This complex situation merits carefully tailored, multi-range and long-term legal consequences. But even the acceptance of a legally enforceable mutual support obligation seems not only a suitable candidate for equal outcomes for any two persons who are willing to enter into such a pact, but also merits a basic “quid pro quo” from the taxpayer . The “quo” of course is the legally enforceable partner-to-partner, spouse-to-spouse support obligation that relieves the taxpayer of the potential risk of welfare expenditures, whether the partners are heterosexual or homosexual. Note again, however, that the risk of dependency is vastly greater (and in any event of greater social interest) if the partnership is raising or has previously raised children, than if it has not. In the same vein, it is much less obvious that some form of joint property should arise or a that forced share in the partner’s estate should be extended to the surviving partner of a relationship that fell short of the kind of familial partnership that is implicit in child raising. Note, of course, that neither child-raising nor child-supporting is necessarily gender-based!