Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, October 6, 2020

Balkinization symposium on William N. Eskridge, Jr., & Christopher Riano, Marriage Equality: From Outlaws to In-Laws

From  June Carbone & Naomi Cahn, guest blogging for Balkinization regarding the Balkinization symposium on William N. Eskridge, Jr., & Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020):

From Outlaws to In-Laws is masterful on so many levels that it would take the rest of this review just to list them. It is a readable, social, legal, religious history that documents the efforts to achieve marriage equality in the United States through interviews with the leading participants, close readings of legal briefs and cases, careful review of jurisprudence, and attention to demographic changes and the geographic context of the developments. And it is balanced, including discussion of the work of marriage advocates and foes from both within and outside of the LGBTQ+ movement. The book has been decades in the making (consider that some of the interviews were first conducted 20 years ago, p. 914), and the resulting volume provides both contemporaneous reactions and more long-term, retrospective analysis of the movement along with lessons for other social movements.

In a book this long (753 pages of text; 1026 pages total), it is hard to say that there is much that it does not cover; the questions about the book therefore have to be ones of emphasis.   This is above all an on-the-ground and contemporaneous account of a movement (with one of the authors appearing as an actor at times).  It  emphasizes how those in the midst of the fight weighed their options, compromised and then second-guessed the compromises, suffered setbacks, persisted, and ultimately prevailed in winning a national right to marry in the Supreme Court of the United States and ultimately in the court of public opinion.   It is a triumphal account and it has a right to celebrate a dramatic victory.    In the background, however, is a nagging question that remains unresolved: was marriage the right fight?

Movement activists had doubts from the beginning.  Paula Ettlelbrick, for example, questioned whether it was worth the effort to join so patriarchal an institution, one premised on established gender roles at odds with much of gay culture (pp. 75-76).  Nancy Polikoff joined Ettelbrick in also questioning whether the celebration of marriage would deepen the exclusion of “more marginal members of the lesbian and gay community (women, people of color, working class and poor)” (pp. 76, 513) and, indeed, the movement gained force “just as marriage was moving out of reach for working class and poor Americans” (p.  513).

In that sense, it is interesting to consider what might have been.  The authors detail the development of reciprocal beneficiaries, domestic partnerships, civil unions, and the pacte civil de solidarite (PaCS) that helped spur a heterosexual movement out of marriage in France (p. 157).  More critically, Eskridge and Riano mention in their reflections at the end of the book the development of innovative parentage principles, such as second parent adoption and de facto parentage (pp. 737-40) that permitted the creation of families of choice outside of marriage and the expansion of contractual provisions to cover health care decision-making and other subjects. 

Read more here.

 

From Doug NeJaime:

Yesterday I focused on the innovative and important LGBT family law work documented in William Eskridge and Christopher Riano’s breathtaking book, Marriage Equality: From Outlaws to In-Laws. I discussed domestic partnerships, designated beneficiaries, second-parent adoption, parentage judgments, and voluntary acknowledgments of parentage (VAPs). I did not discuss marriage. Yet the book is an account of the path to marriage equality. Today, I’ll explore the tension between the family law pluralism I addressed yesterday and the fight for marriage equality at the heart of the book. Eskridge and Riano carefully analyze this tension—detailing how LGBT efforts were channeled into marriage and contemplating the legal regulation of families in a post-marriage equality world.

Eskridge and Riano frame the entire book through the story of Rowse and DeBoer. These two women wanted to have their relationships to their children recognized and thus sued for access to second-parent adoption. (p. 3) For a variety of reasons, including the urging of the federal judge assigned to their case, Rowse and DeBoer’s lawsuit become a marriage suit. It was not just any marriage suit; it was one of the cases decided in Obergefell v. Hodges, the 2015 U.S. Supreme Court decision opening marriage to same-sex couples. Once married (in a ceremony officiated by the very judge who presided over their case), Rowse and DeBoer secured their parentage with respect to all of their children by undertaking stepparent adoptions. But they should not have had to marry to establish their parental status. Today, Michigan allows same-sex couples to marry but does not expressly permit second-parent adoption.

Eskridge and Riano’s focus on Rowse and DeBoer shows how significant they view the tensions created by the movement’s drive toward marriage. The authors spend a good deal of time discussing left critiques of the marriage equality campaign—critiques lodged both by movement insiders and by scholars of gender, sexuality, and the family. They grapple with the serious issues these critiques raise. They worry that the movement’s focus on marriage made outsiders of those whose relationships did not fit neatly within marriage’s confines. They express concern that the messaging necessary to secure marriage equality further cements the special status of marriage and thereby demeans unmarried people. (p. 711) And they contemplate whether the U.S. Supreme Court’s decision in Obergefell supplies the legal justification for withholding rights and obligations from nonmarital families, including children in those families. (p. 729)

But Eskridge and Riano are not wholly persuaded by critics on the left. (p. 730) Instead, their wide-ranging and nuanced account of LGBT advocates’ family law work—marriage-related and otherwise—reveals a more complex story in which marriage resides alongside other family law developments—domestic partnership, designated beneficiaries, second-parent adoption, intended parentage, and so on—that respond to the needs of those who exist outside marriage. (p. 717) The family law pluralism we are left with is uneven and partial, happens in fits and starts, and sometimes takes a step backward, but it is family law pluralism nonetheless.

LGBT people created family arrangements that defied conventional norms. LGBT advocates struggled to forge new forms of recognition to accommodate these unconventional family arrangements. At the same time, LGBT advocates and their constituents felt the draw of marriage. Some desired inclusion in an institution accorded such great societal and legal significance. But even those who did not desire such inclusion were constrained by the normative force of marriage and the legal framework that privileged it. Against this marriage-centered backdrop, it seems even more remarkable that LGBT advocacy transformed important dimensions of family law outside marriage.

Read more here.

 

From Andrew Koppelman:

During the oral argument in Obergefell v. Hodges, Chief Justice Roberts observed:  “I’m not sure it’s necessary to get into sexual orientation to resolve this case.  I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”  He ended up dissenting from the Court’s decision granting the right of same-sex couples to marry, but his dissent did not explain how he could answer the sex discrimination argument.  He evidently didn’t think he needed to address it, because Justice Kennedy’s majority opinion likewise ignored it.  This past term, Roberts joined the majority in Bostock v. Clayton County, which interpreted Title VII to protect gay people on the basis of the identical argument.  Perhaps these positions form a coherent whole, but I don’t understand how they could.

In the debates over same-sex marriage, I’ve had a paternal interest in the sex discrimination argument.  I coauthored an amicus brief in Obergefell, which Roberts evidently was referring to.  I had been saying this for decades.  “If Lucy is permitted to marry Fred, but Ricky may not marry Fred, then (assuming that Fred would be a desirable spouse for either) Ricky is being discriminated against because of his sex.”  Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).  Under long-established Equal Protection doctrine, laws that discriminate on the basis of sex are subject to heightened scrutiny, presumptively unconstitutional unless the state can show that they are substantially related to an important government interest.  One did not need to expand the amorphous boundaries of substantive due process.  Nor did one need to claim that sexual orientation is a suspect classification – an argument that isn’t helpful in this context anyway, since marriage laws that exclude same-sex couples discriminate on the basis of sex, not sexual orientation.

Eskridge and Riano’s marvelously comprehensive study shows that the sex discrimination argument is a bit player in this drama, an attendant lord, one that will do to swell a progress, start a scene or two.  It turns up from time to time in the decisions, sometimes very consequential ones.  But litigators hesitated to use it, and in the end the Supreme Court ignored it, relying instead on fuzzy pronouncements about dignity.

Read more here.

https://lawprofessors.typepad.com/family_law/2020/10/balkinization-symposium-on-william-n-eskridge-jr-christopher-riano-marriage-equality-from-outlaws-to.html

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