Families of Affinity

Beyond (Straight and Gay) Marriage: Valuing All Families Under The Law

By Nancy Polikoff

Boston: Beacon Press, 2008, 259 pp., $24.95, hardcover

Reviewed by Ruthann Robson

The same-sex marriage debate is actually two debates. The more well-known version is the contest between those who seek to “defend” the heterosexual institution of marriage and those who argue that same-sex couples should have equal access to the legal status of marriage. Less publicized is the dispute within LGBT communities themselves, between those who believe marriage is a civil right necessary to the achievement of equality and those who insist that it’s a hopelessly heterosexual and patriarchal institution that should be abolished rather than assimilated into.

Nancy Polikoff, a professor of law at American University College of Law and long-time legal activist on behalf of lesbian mothers, enters this fray seeking to resolve and reframe both debates. She begins concretely: “Karen Thompson had a problem.” For many in the LGBT community, the plight of Thompson and her lover, Sharon Kowalski, embodies the most compelling argument for same-sex marriage. When Kowalski was severely injured in a car accident, her father was named guardian, and Thompson was barred from seeing her lover. In the 1980s, “Free Sharon Kowalski” became a rallying cry, growing louder as the AIDS pandemic escalated, and stories of hostile families of origin circulated. In 1991, a Minnesota appellate court granted the guardianship to Thompson, declaring the lovers a “family of affinity.”

Although Polikoff returns to the Kowalski case later in the book, her opening invocation of this landmark litigation is only several lines. She quickly raises several lesser-known situations: a lesbian mother is held in contempt of court for allowing her partner to spend the night while her children are visiting, despite the fact that the women have a civil union; a gay man is killed in the World Trade Center attack and the benefits are awarded to the father he has not seen for twenty years rather than to his partner of fourteen years; a lesbian mother is diagnosed with breast cancer and her partner cannot provide insurance or become a legal parent to their child. Polikoff admits that the availability of same-sex marriage is one solution to these legal tragedies. But she says she sees “these stories differently.” Cleverly appropriating conservative rhetoric against LGBT rights, she asks “whether married-couple families should have ‘special rights’ not available to other family forms.”

As she soon makes clear, her argument is not limited to same-sex couples. Other vexing situations she describes include opposite-sex, unmarried couples suffering discrimination: a woman deemed morally unfit to practice law because she was cohabitating with a man; a woman disallowed from suing for damages when she saw her fiancé killed; a woman and man denied an occupancy permit to reside in the house they had purchased. Again, she admits that these couples could have solved their problem by marrying, but argues that their legal rights should not depend on their marital status.

And not all family problems are marital ones. Polikoff’s next examples, also drawn from actual cases, involve the denial of legal rights in relationships among children, parents, and siblings, such as the case of a woman in public housing who was denied permission to share her home with her elderly father, who needed her care. Such problems, Polikoff correctly notes, are not solved by the availability of marriage. Instead, she argues, we need to “envision family law and policy without marriage being the rigid dividing line between who is in and who is out.” She names her new approach “valuing all families.” Family plurality is her answer; not same-sex marriage.

Polikoff’s goal is to de-center marriage, including same-sex marriage. Her method of achieving this goal is twofold. First, she analyzes recent history and provides a narrative of the same-sex marriage movement and the various backlashes against it. She begins with the “radical and reform movements of the 1960s and 1970s,” including feminism, that theorized marriage as “part of the problem, not part of the solution.” While Polikoff obviously admires this approach, she eschews nostalgia in favor of a detailed examination of the twists and turns in legal and political developments.

One of her most surprising revelations is the 1991 draft of a Family Bill of Rights by Evan Wolfson, whom Polikoff accurately describes as “one of the most widely recognized national advocates of same-sex marriage.” In his Family Bill of Rights, though, Wolfson stressed family diversity, declaring that legal benefits should not depend on “marital relation, genetic history, or other arbitrary distinctions.” The erosion of this kind of commitment to diversity in favor of the struggle for “equal marriage rights” was accompanied by other cultural shifts, including a backlash that was not exclusively conservative. As Polikoff notes, by 1994 the phrase “family values” was a mainstay of all political rhetoric, supported by religious and social science sources. This is the context for same-sex marriage litigation in states such as Hawai’i, Vermont, and Massachusetts (in 2003, the first and thus far the only state to permit same-sex marriage), as well as for such backlash developments as the federal Defense of Marriage Act (signed by President Clinton in 1996), and various state laws and referenda with similar aims. Polikoff discusses the legal and political terrain in an accessible and authoritative manner.

Polikoff’s second method is comparative. She argues that among Western nations, the US is unique in policing an inflexible line between married and unmarried couples. She focuses on three common-law nations that, like the US, base their legal practices on Great Britain: Canada, Australia, and New Zealand/Aotearoa. Additionally, she considers Brazil, Israel, South Africa, and more predictably, Scandinavian and other nations of Western Europe. Each of these nations, she contends, can be a model for the US, in terms not only of LGBT rights but also recognition for heterosexuals in diverse families.

Polikoff marshalls her national comparisons and historical narrative to cast doubt on the current reverence for marriage in US legal and political culture. Essentially, she is demonstrating that the present situation could be otherwise. From this springboard, Polikoff dives into the depths of her case for change.

She presents three principles for valuing all families: place the needs of children and their caretakers above the claims of able-bodied adult spouses/partners; support the needs of children in all family forms; and recognize adult interdependency. Applying these principles in contexts such as the tax code, domestic violence, illness, termination of relationships, and death benefits such as social security, Polikoff demonstrates how a myopic focus on marriage has hijacked the basic value of fairness. She proposes solutions: civil partnership rather than marriage; “designated family relationships” for healthcare decision making; universal healthcare; expansion of adoption and parental responsibility; and death benefits based upon dependency.

At times, Polikoff’s descriptions of the problems and her solutions are too brief. In balancing comprehensive analysis against mainstream approachability, she has favored the latter. This is an understandable choice for reaching the widest audience. Her use of illustrations from actual litigation (and not television programs and movies, as so many other recent academic books of legal theory seem to do) is excellent. But an example is merely an example, especially in the realm of unique relationships between unique people. Although there are almost 25 pages of notes, the book would have benefited from even more sources and discussions. The theorizing could have been deepened by more attention to the economic disparities that debilitate LGBT communities, women, and the US. Certainly Polikoff pays more attention to economic justice than most theorists of marriage, but even more is necessary. While she writes “gay rights groups should urge” the adoption of an individual-based (rather than employment-based) healthcare plan if “any politicians propose” one, she should have supported this with more discussion of the horrific consequences of employment-based healthcare for those who are unemployed or underemployed. She also risks replacing the overdetermined category of “marriage” with an overdetermined category of “family,” even if her definition of family is more elastic and functionally based than the formal conservative definition.

Nevertheless, Beyond (Straight and Gay) Marriage is the book many have been waiting for. It provides an alternative vision to the promotion of marriage, whether it be heterosexual or same-sex. It proposes changes in the way we think about marriage, about social structures, and about law. For those who have asked the question, “If not marriage, then what?” Nancy Polikoff provides answers worth contemplation and implementation.

Ruthann Robson is professor of Law and University Distinguished Professor at the City University of New York. She is the author of Sappho Goes to Law School (1997) and Lesbian (Out)Law (1992), as well as lesbian fiction, creative nonfiction, and poetry.

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