Read an Excerpt
Chapter One: What Is Marriage?
Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.
Massachusetts Supreme Judicial Court
Goodridge v. Department of Public Health (2003)
How the world can change,
It can change like that,
Due to one little word:
John Kander and Fred Ebb,
"Married," Cabaret (1966)
Depending on which linguistic expert you ask, there are anywhere from two thousand to seven thousand different languages spoken in the world today. That's a huge number to put your mind around even for someone who lives in Manhattan, where seemingly hundreds of those languages can be heard on the subway on any given day. Still, I'm willing to bet that each of these languages has something in common with the others: a word that means marriage.
No matter what language people speak from Arabic to Yiddish, from Chinook to Chinese marriage is what we use to describe a specific relationship of love and dedication to another person. It is how we explain the families that are united because of that love. And it universally signifies a level of self-sacrifice and responsibility and a stage of life unlike any other.
Now of course, different cultures and times have had many different conceptions of marriage, different rules and different ways of regarding those who are married not to mention different treatment for married men and married women. We will explore some of those differences in this book: differences in who can marry whom and when, in how to end a failed marriage (or if you even may), in how many people you can marry, in the involvement or noninvolvement of the state and religion, and in the consequences that come with being married. But with all this variety and all the changes that have occurred in marriage over time and in different places, including our country and within our lifetime, it is clear that marriage has been a defining institution in virtually every society throughout history. Given its variety and omnipresence, it is not surprising that when people talk about marriage, they often mean different things.
Consider all the different dimensions of marriage in the United States alone. First, marriage is a personal commitment and an important choice that belongs to couples in love. In fact, many people consider their choice of partner the most significant choice they will ever make. It is a relationship between people who are, hopefully, in love and an undertaking that most couples hope will endure.
Marriage is also a social statement, preeminently describing and defining a person's relationships and place in society. Marital status, along with what we do for a living, is often one of the first pieces of information we give to others about ourselves. It's so important, in fact, that most married people wear a symbol of their marriage on their hand.
Marriage is also a relationship between a couple and the government. Couples need the government's participation to get into and out of a marriage. Because it is a legal or "civil" institution, marriage is the legal gateway to a vast array of protections, responsibilities, and benefits most of which cannot be replicated in any other way, no matter how much forethought you show or how much you are able to spend on attorneys' fees and assembling proxies and papers.
The tangible legal and economic protections and responsibilities that come with marriage include access to health care and medical decision making for your partner and your children; parenting and immigration rights; inheritance, taxation, Social Security, and other government benefits; rules for ending a relationship while protecting both parties; and the simple ability to pool resources to buy or transfer property without adverse tax treatment. In 1996, the federal government cataloged more than 1,049 ways in which married people are accorded special status under federal law; in a 2004 report, the General Accounting Office bumped up those federal effects of marriage to at least 1,138. Add in the state-level protections and the intangible as well as tangible privileges marriage brings in private life, and it's clear that the legal institution of marriage is one of the major safety nets in life, both in times of crisis and in day-to-day living.
Marriage uniquely permits couples to travel and deal with others in business or across borders without playing a game of "now you're legally next of kin; now you're legally not." It is a known commodity; no matter how people in fact conduct their marriages, there is a clarity, security, and automatic level of respect and legal status when someone gets to say, "That's my husband" or "I love my wife."
Marriage has spiritual significance for many of us and familial significance for nearly all of us. Family members inquire when one is going to get married, often to the point of nagging. Many religions perform marriage ceremonies, many consider marriage holy or a sacrament within their faith, and the majority of American couples get married in a religious setting although the percentage of those having a purely civil ceremony is at nearly 40 percent and growing. As far as the law is concerned, however, what counts is not what you do at the altar or whether you march down the aisle, but that you get a civil marriage license from the government and sign a legal document in the vestibule of the church, synagogue, temple, or mosque or at city hall, a court, or a clerk's office. As a legal matter, what the priest, minister, rabbi, or other clergy member does is witness the couple's commitment and attest to their conformity with the requirements for a civil marriage license.
As ubiquitous and varied as the institution is, the word marriage and its myriad translations throughout the world also have a unique meaning that children often use in making a joke. Who doesn't remember taunting friends with a question like this: "If you love candy so much, why don't you marry it?" Of course we know now and I suppose we must have known then that the punch line was in the question itself. The joke shows that though they may well "go together like a horse and carriage," marriage is different from love. Love is a word that can be applied to anything from your favorite song and your best-fitting pair of Levi's to your parents, your roommate, or your boyfriend, while marriage signifies an unequaled commitment. And, as the childhood taunt illustrates, that's a distinction most of us have understood since we were kids.
Still, marriage is now the vocabulary we use to talk of love, family, dedication, self-sacrifice, and stages of life. Marriage is a language of love, equality, and inclusion. While recognizing that marriage should not be the sole criterion for benefits and support nor the only family form worthy of respect most of us take marriage seriously and most of us do marry.
None of this is to say that marriage is the right choice for everybody. One need only meet a happy single or divorced person to know that many people are pleased with their decision to avoid matrimony. And, of course, we've all been to weddings where we wonder how she could marry him. As splendid as the institution is in the abstract, and as revered as marriage is in virtually every society, one need only look at the divorce rate to know that there are bad marriages and marriages that, without fault, have ceased to work.
There is clearly a difference between marriage and marriages, between the institution and the choices and conduct of real couples in their commitment. For better or for worse, marriage is about choice, whether it be the choice to "make it official" with your beloved and to accept the protections and the responsibilities that accompany that decision; the choice to work at your marriage and make it rewarding and good; the choice to betray or divorce a spouse; or the choice to avoid the institution of marriage altogether.
But marriage hasn't always been about choice. In fact, as we will see later, it has historically been a battlefield, the site of collisions within and between governments and religions over who should regulate it. But marriage has weathered centuries of skirmishes and change. It has evolved from an institution that was imposed on some people and denied to others, to the loving union of companionship, commitment, and caring between equal partners that we think of today.
In ancient Rome, for example, a man was not considered a citizen until he was married, and in many countries today, people, no matter how old, live under the roof, and remain under the control, of their parents until they wed often a powerful incentive to marry (and a far cry from our idea of marriage as a choice made out of love). And you might be surprised to learn that, for example, the Catholic Church had nothing to do with marriage during the church's first one thousand years; marriage was not yet recognized officially as a Catholic sacrament, nor were weddings then performed in churches. Rather, marriage was understood as a dynastic or property arrangement for families and the basic social unit, households (then often extended families or kin, often including servants and even slaves). Family life and law in past centuries, let alone marriage, were very different from anything we'd recognize in the United States today.
Battles over marriage have taken place in America, too. As we'll talk about more in later chapters, there was a time when our country excluded African-Americans from marriage altogether, prohibited people from marrying a partner of the "wrong" race, denied married people the use of contraception, and stripped women of their rights and even personhood essentially making them chattel at the altar. It took decades and decades of fighting to change these injustices. And change still needs to take place in the hearts of many, not to mention the law. As recently as 1998 in South Carolina and 2000 in Alabama, 40 percent of the voters in each state voted to keep offensive language barring interracial marriage in their respective state constitutions.
But fortunately, the general story of our country is movement toward inclusion and equality. The majority of Americans are fair. They realize that exclusionary conceptions of marriage fly in the face of our national commitment to freedom as well as the personal commitment made by loving couples. Americans have been ready again and again to make the changes needed to ensure that the institution of marriage reflects the values of love, inclusion, interdependence, and support.
Such a change came about as recently as 1987, when a group of Americans who had been denied the freedom to marry came before the U.S. Supreme Court. Before the justices issued an opinion in the case, Turner v. Safley, they had to determine what role marriage plays in American society. Or, more precisely, what role marriage plays in American law.
After careful consideration, the justices outlined four "important attributes" of marriage: First, they said, marriage represents an opportunity to make a public statement of commitment and love to another person, and an opportunity to receive public support for that commitment. Second, the justices said, marriage has for many people an important spiritual or religious dimension. Third, marriage offers the prospect of physical "consummation," which of course most of us call something else. And fourth, the justices said, marriage in the United States is the unique and indispensable gateway, the "precondition," for a vast array of protections, responsibilities, and benefits public and private, tangible and intangible, legal and economic that have real importance for real people.
The Supreme Court of course understood, as we discussed above, that marriage has other purposes and aspects in the religious sphere, in business, and in people's personal lives. The justices knew, for example, that for many people, marriage is also important as a structure in which they can have and raise children. But when examined with the U.S. Constitution in mind, these four attributes or interests identified by the Court are the ones that have the legal weight. And after weighing these attributes, the justices ruled in a unanimous decision that marriage is such an important choice that it may not be arbitrarily denied by the government. Accordingly, they ordered that the government stop refusing marriage licenses to the group of Americans who had brought the case.
That group of Americans was prisoners.
Seventeen years after the Supreme Court recognized that the choice to marry is so important that it cannot be arbitrarily denied to convicted felons, one group of Americans is still denied the freedom to marry. No matter how long they have been together as a couple, no matter how committed and loving their relationship, and no matter how much they need the basic tools and support that come with marriage, lesbian and gay Americans in this country are excluded from the legal right to obtain a civil marriage license and marry the person they love.
Who are these same-sex couples and how does the exclusion from marriage harm them and their families?
They include Maureen Kilian and Cindy Meneghin of Butler, New Jersey, a committed couple ever since they met more than thirty years ago during their junior year in high school. Maureen works part-time as a parish administrator for Christ Church in nearby Pompton Lakes, where her job includes entering the names of married couples into the church registry. Cindy, meanwhile, is the director of Web services at Montclair State University. The women wish that one of them could stay at home full-time to help care for their two children, Josh and Sarah. But because they aren't married, neither of them is eligible for family health insurance through her employer, so both of them have to leave the kids in order to stay insured.
"We are good citizens, we pay our taxes, and we are caring parents but we don't have the same equality as other Americans," Maureen told the New York Times. "We're tired of having to explain our relationship. When you say you're married, everyone understands that." More than anything, Maureen and Cindy told the Times, they want spousal inheritance rights, so that if one of them dies, the other one can stay in their home without having to pay crippling estate taxes to the Internal Revenue Service. That security comes with marriage.
Alicia Heath-Toby and Saundra Toby-Heath also live in New Jersey and have been a couple for more than fifteen years. Alicia is a deacon and Saundra an usher in the Liberation in Truth Unity Fellowship Church, an African-American congregation, and they regularly participate in church cookouts, picnics, dances, and family activities as well as services. The women have children and grandchildren, bought a home together in Newark, and pay taxes. When Alicia had surgery, Saundra took weeks off from her work as a FedEx dispatcher to take care of her. Denied access to family health insurance and required to pay two deductibles instead of one because they are not married, Saundra and Alicia want to enter a legal commitment to match the religious one they already celebrated in their church.
"If two complete strangers met each other last week and got legally married today, they would have more rights under the law than our relationship has after fifteen years of being together. That's not fair," Saundra and Alicia told their lawyers at Lambda Legal Defense & Education Fund. "We pay first-class taxes, but we're treated like second-class citizens." They worry about their kids and each other, and they want the best legal and economic protection they can get for their family. That protection comes with marriage.
Tony Eitnier and Thomas Arnold have been life partners for more than ten years, but until recently they faced every day with the fear that it would be their last together. That's because Tony is from the United States and Thomas is from Germany. Unlike most of America's close allies, such as Canada and the United Kingdom, our country discriminates with policies that do not allow gay citizens to remain together with committed partners from other countries under the family unification principles that normally apply in immigration. "It [is] a mental battle not to go crazy, never knowing if your partner is going to have to leave tomorrow," Tony told the Associated Press. "You become paranoid."
Because Germany is one of more than fifteen countries with an immigration policy that treats binational same-sex couples equally, Tony and Thomas moved to Berlin, where they can live together without fear of a forced separation. That's little comfort for Tony's family in San Diego, California, though. "I'm very close to my family, and it was extremely traumatic to have to leave," Tony said. "My parents are bitter at the government." The couple holds on to the hope that they can return to the U.S. and live openly and legally as a couple in Tony's own country, America, the land of the free. That right comes with marriage.
Chris Lodewyks and Craig Hutchison of Pompton Lakes, New Jersey, have been committed partners since they met when they were freshmen in college, more than thirty years ago. As is the case for many middle-aged couples, Chris and Craig have spent a good part of the past decade looking after their aging parents. When Chris's mom was battling cancer at the end of her life, Craig took time off from work to help care for her. And now that Chris is retired, he can spend time helping Craig's elderly mother. The men also are active in the community. Chris has spearheaded a town cleanup day, with businesses donating prizes to hundreds of volunteers, and Craig serves on the board of a YMCA camp. "Gay and lesbian topics are in the news every day," Chris told New Jersey's Bergen County Record. "This is an emotional time, and some people may be looking at this like it's going too fast. But it's not going too fast. It's time for us to have the same civil rights as everyone else."
Chris and Craig have shown the personal commitment to each other, have done the work, and have undertaken on their own many of the family responsibilities of a married couple, including caring for each other's parents. Now they want the full legal responsibilities and protections that the government bestows on married couples. "After thirty years of commitment and responsibility the government treats our accomplishments together as worthless," Craig said. Full protections and legal responsibility come with marriage.
Julie and Hillary Goodridge of Jamaica Plain, Massachusetts, have been in a committed relationship for sixteen years and are raising a young daughter together. One day the women played the Beatles song "All You Need Is Love" for their daughter, Annie, who was five years old at the time. When Hillary asked Annie if she knew any people who loved each other, Annie named several of her mothers' married friends. "What about Mommy and Ma?" Hillary asked. "Well," Annie replied, "if you loved each other you'd get married." At that point, Hillary later told Newsweek magazine, "My heart just dropped."
It wasn't the first time that the freedom to marry would have helped clarify the Goodridges' family relationship for the people around them. The most dramatic illustration of how exclusion from marriage harms their family took place after Julie's caesarean delivery of Annie, when Hillary was denied entry into the ICU to see her newborn daughter. "They said, 'Only immediate family,' and I had a fit," Hillary told People magazine.
Who wouldn't have a fit? And who should have to go through an ordeal like that, especially at such an important, trying, and hopefully joyous time as the birth of a child? The Goodridges want assurance that they won't encounter similar obstacles the next time Julie, Hillary, or Annie is hospitalized or in need. That assurance comes with marriage.
In fact, exclusion from the freedom to marry unfairly punishes committed same-sex couples and their families by depriving them of critical assistance, security, and obligations in virtually every area of life, including, yes, even death and taxes:
- Death: If a couple is not married and one partner dies, the other partner is not entitled to get bereavement leave from work, to file wrongful death claims, to draw the Social Security payments of the deceased partner, or to automatically inherit a shared home, assets, or personal items in the absence of a will.
- Debts: Unmarried partners do not generally have responsibility for each other's debt.
- Divorce: Unmarried couples do not have access to the courts or to the legal and financial guidelines in times of breakup, including rules for how to handle shared property, child support, and alimony, or to protect the weaker party and the kids.
- Family leave: Unmarried couples are often not covered by laws and policies that permit people to take medical leave to care for a sick spouse or for the kids.
- Health: Unlike spouses, unmarried partners are usually not considered next of kin for the purposes of hospital visitation and emergency medical decisions. In addition, they can't cover their families on their health plans without paying taxes on the coverage, nor are they eligible for Medicare and Medicaid coverage.
- Housing: Denied marriage, couples of lesser means are not recognized as a family and thus can be denied or disfavored in their applications for public housing.
- Immigration: U.S. residency and family unification are not available to an unmarried partner from another country.
- Inheritance: Unmarried surviving partners do not automatically inherit property should their loved one die without a will, nor do they get legal protection for inheritance rights such as elective share or to bypass the hassles and expenses of probate court.
- Insurance: Unmarried partners can't always sign up for joint home and auto insurance. In addition, many employers don't cover domestic partners or their biological or nonbiological children in their health insurance plans.
- Parenting: Unmarried couples are denied the automatic right to joint parenting, joint adoption, joint foster care, and visitation for nonbiological parents. In addition, the children of unmarried couples are denied the guarantee of child support and an automatic legal relationship to both parents, and are sometimes sent a wrongheaded but real negative message about their own status and family.
- Portability: Unlike marriages, which are honored in all states and countries, domestic partnerships and other alternative mechanisms only exist in a few states and countries, are not given any legal acknowledgment in most, and leave families without the clarity and security of knowing what their legal status and rights will be.
- Privilege: Unmarried couples are not shielded against having to testify against each other in judicial proceedings, and are also usually denied the coverage in crime-victims counseling and protection programs afforded married couples.
- Property: Unmarried couples are excluded from special rules that permit married couples to buy and own property together under favorable terms, rules that protect married couples in their shared homes, and rules regarding the distribution of property in the event of death or divorce.
- Retirement: In addition to being denied access to shared or spousal benefits through Social Security as well as coverage under Medicare and other programs, unmarried couples are denied withdrawal rights and protective tax treatment given to spouses with regard to IRAs and other retirement plans.
- Taxes: Unmarried couples cannot file joint tax returns and are excluded from tax benefits and claims specific to marriage. In addition, they are denied the right to transfer property to each other and pool the family's resources without adverse tax consequences.
And, again, virtually all of these critical, concrete legal incidents of marriage cannot be arranged by shelling out money for an attorney or writing up private agreements, even if the couple has lots of forethought to discuss all the issues in advance and then a bunch of extra cash to throw at lawyers.
It's not just same-sex couples who are harmed by society's refusal to respect their personal commitment and human desire for the protections and statement of marriage. Going back to that juvenile quip, "If you love it, why don't you marry it," let me tell you one of my earliest memories of when I realized I was gay.
I am lucky to have a very close and loving family, and grew up living with my parents, sister, and two brothers. One night I couldn't have been more than eleven or twelve my mother and I were watching something on TV and talking. Dad was out on his weekly bowling night and the other kids must have already gone off to sleep. I remember saying to my mom, in what must have seemed an out-of-the-blue declaration, "I don't think I'll get married." I don't remember if, or how, my mom responded. But I do remember that I realized I might be excluded from the joys of married life, and felt there was something in the picture society showed me that I didn't fit into, before I could tell my mom or even fully understand that I was gay.
Many gay kids, even before they hear the word gay and associate it with themselves, and even before they fully understand how their own lives will take shape, do understand that they are different from their friends. For the most part, of course, gay kids grow up in the non-gay world raised by non-gay parents; surrounded by mostly non-gay siblings, friends, relatives, and teachers; exposed to non-gay images and expectations everywhere, from church, television, and popular music. And yet, until now our society has also sent those kids the message that the dream of romantic love, of commitment, of family, of marriage is not for them. America tells its children that the dream of "first comes love, then comes marriage" is not for you if you're gay.
This is wrong and has to change.
Unlike the members of most other minority groups, we gay people are not usually born into our own identity or community, or into families that share or understand our sense of self; we have to find our way largely on our own, often after working through negative messages about homosexuality, or a lack of understanding from family members, peers, churches, and the other institutions that people rely on for self-identification, solidarity, and support.
When I told my mother I didn't think I'd get married, I was not rejecting marriage; I was working out my own sense of difference in a world that said I could not have what marriage signifies life as a couple with the person you choose, legal recognition, acceptance given the restrictions placed both on marriage and on people like me.
Again, I was lucky. I never doubted that my parents loved me and would love me, even if and when they found out I was gay. That doesn't mean it was easy for my parents. When, years later, I told them I am gay, it meant there were some differences in the life they imagined for me, differences they in turn had to accept as part of their unconditional love for me.
Even with loving parents and personal self-confidence, as a young child not even knowing the word gay, I was led to believe that I had to reject a pattern of life that didn't seem to be available for me with the kind of partner I could truly love, someone of the same sex. In a childish way, I thought it was "marriage" I didn't fit into, when, in fact, the love and commitment marriage signifies were perfectly appropriate dreams for me. It was exclusion, rejection, and the denial of the freedom to marry that were and are unnecessary, harsh, harmful, and wrong.
Notice here that I'm not using terms like "gay marriage" or "same-sex marriage." That's because these terms imply that same-sex couples are asking for rights and privileges that married couples do not have, or for rights that are something lesser or different than what non-gay couples have. In fact, we don't want "gay marriage," we want marriage the same freedom to marry, with the same duties, dignity, security, and expression of love and equality as our non-gay brothers and sisters have.
Gay people have the same mix of reasons for wanting the freedom to marry as non-gay people: emotional and economic, practical and personal, social and spiritual. The inequities and the legal and cultural second-class status that exclusion from marriage reinforces affect all gay people, but the denial of marriage's safety net falls hardest on the poor, the less educated, and the otherwise vulnerable. And the denial of the freedom to marry undermines young gay people's sense of self and their dreams of a life together with a partner.
Of course our country needs to find ways other than marriage to support and welcome all kids, all families, and all communities. Marriage is not, need not, and should not be the only means of protecting oneself and a loving partner or family. But like other Americans, same-sex couples need the responsibilities and support marriage offers legally and economically to families dealing with parenting, property, Social Security, finances, and the like, especially in times of crisis, health emergency, divorce, and death. And gay people, like all human beings, love and want to declare love, want inclusion in the community and the equal choices and possibilities that belong to us all as Americans.
Marriage equality is the precondition for these rights, these protections, this inclusion, this full citizenship. The freedom to marry is important in building strong families and strong communities. What sense does it make to deny that freedom to Maureen and Cindy, Alicia and Saundra, Tony and Thomas, Chris and Craig, or Julie and Hillary?
How many more young people have to grow up believing that they are alone, that they are not welcome, that they are unequal and second-class, that their society does not value their love or expect them to find permanence and commitment?
How many non-gay parents and family members have to worry or feel pain for their gay loved ones? What mother doesn't want the best for all her kids, or want to be able to dance at her lesbian daughter's wedding just as she did at her other child's?
As Americans have done so many times in the past, it's time we learn from our mistakes and acknowledge that lesbian and gay Americans like people the world around speak the vocabulary of marriage, live the personal commitment of marriage, do the hard work of marriage, and share the responsibilities we associate with marriage. It's time to allow them the same freedom every other American has the freedom to marry.
Copyright © 2004 by Evan Wolfson