Beyond Marriage Equality
By John Culhane | October 10, 2023
What if the law recognized and supported all kinds of committed adult relationships? That’s the question I explore in More Than Marriage: Forming Families After Marriage Equality. With marriage rates having dropped to about 50%, and with escalating attacks on the LGBTQ+ community, consideration of this issue is well overdue.
The Legal Benefits of Marriage
Marriage comes with an enormous array of federal and state benefits, such as income tax deductions and social security survivor payments, the right to sponsor a partner for immigration purposes, joint adoption, and the right to sue in negligence for the injury or death of an intimate partner. In addition, marriage is often necessary to access a partner’s employer-based health insurance policy. Unequal access to marital rights and benefits was a primary catalyst for the marriage equality movement.
Marriage Equality Movement
I became engaged with legal relationship issues during the marriage equality movement, writing and speaking on the subject wherever and whenever I could. But along the way, the struggle for legal recognition of gay and lesbian unions left practical and moral questions that came into sharp focus for me once victory was achieved through the Supreme Court’s decision in Obergefell v. Hodges (2015). Left out of that movement were many of the people I interviewed for the book. A gay man and a lesbian, the biological parents of three children, had to toggle in and out of marriage as their economic circumstances changed, and the woman’s intimate relationship with another woman had no legal consequence at all. Several male-female couples didn’t want to marry for philosophical reasons and were left stranded in civil union status. Civil unions were a legal, marriage-like legal status created to appease gay and lesbian couples, but sometimes available to all unrelated couples – a house of mirrors that left them suspended between state and federal law. Most compelling, perhaps, were the two elderly sisters who spoke movingly about their long lives cohabitating together, in an emotionally rich relationship that brought none of the status-based rights of marriage. Whatever legal protections they could create between themselves, they did – but they fell far short of what legally wed couples take for granted.
Marriage equality was of course a great victory, but the laser-focus on achieving parity for couples who looked like other two-person unions except for the gender of the parties papered over broader issues of equality.
Why should a couple need to enter into marriage in order to gain legal protection for their relationship in the first place? Yes, it’s possible to hire lawyers and achieve some protections – but this can be expensive and unreliable, and there are some benefits of marriage that can’t be replicated through these measures no matter what a couple does.
Updating Marriage Law
The problems faced by adults who cannot or do not wish to marry stem from a failure of imagination and initiative and could be easily and comprehensively addressed. In 2009, Colorado took the first of several steps in lurching towards marriage equality by enacting the designated beneficiary agreement (“DBA”) law.
The brainchild of State Senator Pat Steadman, the DBA law allowed any two adults to pick and choose the rights and obligations they wanted to provide to each other. On a state-issued form, the parties would simply run through the menu of options and then select, a la carte, the legal arrangements that suited them – and those that did not.
And these choices did not need to be reciprocal. For example, if an elderly woman and her middle-aged son forged a DBA together, the woman might want her son to have power of attorney in case of her disability, but the son might, understandably, not want to give his mother that same power. So she’d initial the “Yes” line for that option, and he’d initial “No.” The couple completes the form, and registers it with the state, just as they would for a marriage license.
And the law works. When Steadman’s partner died of cancer, he went into the bank and presented the couple’s DBA document giving him joint control over the couple’s bank accounts to an employee. Startled, the employee contacted the bank’s lawyer who confirmed that, yes, the DBA was a thing, and that it needed to be honored.
As revolutionary as the DBA law is, though, its origin as mostly a sop to gay and lesbian couples (it was extended to all couples to make the law more politically palatable) also cabins the law’s reach, and in significant ways. For instance, once a person marries, that new status automatically supersedes the DBA and voids it. (The same is true of entering into a civil union, a status that’s also available in Colorado.) Also, no one can be in more than one DBA relationship at the same time. But why not? Just as any two people can enter into a host of legal documents to spell out their relationships to however many different people they wish, DBAs could do the same thing – at far less cost. As I argue in the book, the law should be expanded to embrace married couples who wish to carve out certain items for others and could easily be retooled to allow adults to enter into multiple DBAs, with different people. Electronic cross-checking could flag any inconsistencies, which would then need to be resolved before the document could be filed.
The package of rights and obligations the DBA contemplates are the proper subjects of state law, so the best response would be the creation of a model law that the individual states would then separately enact. This mechanism for achieving nationwide uniformity is well-established. (In the realm of family law, for instance, the Uniform Parentage Act establishes tests and guidelines for determining legal parentage in difficult cases. It can be difficult to persuade legislatures to enact such measures, but they are worth the effort.) As for the federal benefits, a congressional solution is needed; one that considers that current laws privileging marriage don’t reflect current reality.
This expanded DBA would also signal that adult relationships exist in many forms, and with different expectations and reliance. Whether they are married or not, people have intimate partners, friends, and relatives, and the kaleidoscopic nature of the DBA refracts that more complex reality.
It could also bring a welcome and overdue reexamination of marriage itself, and whether the extensive advantages it bestows on wedded couples alone can be justified.
The DBA could also push back against the vilification of and violence against the many LGBTQ+ communities, by transmitting a strong signal that relationships come in a rainbow of forms and that all are worth supporting – and celebrating.
John Culhane is Distinguished Professor of Law at Delaware Law School, and Visiting Professor at the Beasley School of Law at Temple University. His most recent book is More Than Marriage: Forming Families After Marriage Equality. He is a frequent contributor to both Slate and Politico.
Photo credit: Istock.com/Natalia Kopyltsova