Volume 18, Number 2
March 2001

DOMESTIC RELATIONS LAW

Marriage for the New Millennium

Heterosexual, Same Sex—or Not at All?

By Harry D. Krause

Not long ago, heterosexuality was the unquestioned call of nature, and homosexuality was a crime against nature. Children were the unavoidable consequence of marriage. The old-time marketplace did not accept women, and the man’s role as primary economic provider for his family was legitimated. Today, however, society offers a variety of lifestyles for sexual partners. We increasingly see the modern variant of traditional marriage with minor children where both parents participate in the job market and the child-care function is delegated to others. We also see childless relationships, married or unmarried, heterosexual or of the same sex, in which partners pursue their individual careers and set up housekeeping together. Modern divorce law and practice result in (serial) polygamy in the form of multiple marriages or relationships of persons who have continuing legal, financial, and social ties to prior partners and children—responsibilities many cannot meet and many others shirk.

Marriage should be seen for what it has become: one lifestyle choice among many. A pragmatic, rational approach would ask what social functions of a particular association justify extending what social benefits and privileges. Legal benefits and obligations would be tailored according to the realities of the parties’ relationship. Legislative irrationality. Two examples illustrate the legislators’ careless disregard for functional rationality: federal income tax law and the social security system.

The federal income tax law imposes what has been described as a "marriage penalty" and a "marriage bonus." For decades, the marriage tax debate has focused on how to placate married dual earner couples who complain about the marriage penalty, as well as unmarried cohabitants who complain about the unavailability to them of the joint return, as well as single persons who complain that they should not pay at higher rates than married persons. The wrong question has been asked all along. The question should be why our tax law makes a distinction between childless two-earner, equal career partnerships, based solely on whether the partners are married? The next question is why a distinction is not made between partners with children and partners without children, regardless of their marital status. The rational answer seems clear: Married and unmarried couples who are in the same factual positions should be treated alike. Tax significance should be seen in the actuality of ability to pay that is increased by economies of scale or reduced by children.

The social security system bases eligibility on marketplace earnings. The result is that the stay-at-home or secondary career partner accrues only a lesser, typically derivative, retirement eligibility. Meanwhile, the mother’s childless sister is earning money in the marketplace and is building up her social security credits. However, benefits are paid to retirees by taxing the population that is then working—the very parents who, due to their child-rearing-induced absence from the marketplace, will not have earned equivalent social security credits in their own rights. Worse yet, through social security taxation of their own earnings, offspring are rendered that much less able to contribute directly to their own parents’ retirement. In short, the social security system may fairly be accused of transferring the parents’ "capital" investment in their children to childless earners of social security credits. If reason were to guide the legislator, social security law would view the raising of children as the primary (or at least an alternative) contribution on which eligibility for benefits would be based."Rationality" versus cultural history. In the move to update family law to current life, where, if anywhere, may a line be drawn? The question comes down to asking whether effective law may, should, or indeed must reflect a cultural consensus—of which, after all, democratic law is the product.

Constitutional law reasoning, under the Equal Protection and Due Process Clauses, has applied a legislative purpose test that must withstand modern, rational inquiry. Taking its cue from the cultural changes brought by the 1960s, the Supreme Court stepped into the family and sexual arena with numerous decisions on equality and marital and sexual privacy, including a line of cases that ultimately invalidated legal discrimination traditionally directed against nonmarital children, as well as state prohibitions on abortion. While sexual privacy and discrimination on the basis of sex should have been of particular significance in the context of same-sex unions, the Court’s role in the arena of same-sex conduct has not been consistent with those decisions. The Court’s liberal views on marital and sexual privacy in, for instance, its decisions on birth control and abortion contrast sharply with the deference the Court showed in 1986 for state law criminalizing homosexual activity. Presumably, similar deference should be expected with regard to state laws legalizing same-sex marriage as well as state laws prohibiting same-sex marriage—even while some observers point to a decision in the 1990s in which the Court expressed new caveats on same-sex discrimination issues and predict that more change may follow.Marriage versus domestic partnerships. Skepticism regarding the legalization of the cohabitation alternative to legal marriage notwithstanding, basic legal problems arising in such relationships will have to be identified and solved—and preferably not by single issue-oriented court decisions. Legislation is needed to settle these issues.

In the context of heterosexual as well as same-sex cohabitants, these "inescapable" problems obviously include legally binding identification of the paternity of an unmarried woman’s children, the settlement of custodial rights, support duties toward the children, and the settlement of property rights relating to acquisitions and gifts made during the period of cohabitation. Moreover, if same-sex marriage is not in America’s immediate future, it seems equally clear that broader legislation on "domestic partnership," extending to or specifically directed at same-sex partners, will soon become widespread.

Such legislation would address a fuller range of specific concerns of same-sex couples by extending legal consequences that ultimately may be more or less equivalent to heterosexual marriage. True, such legislation would not cede the crucial demand: Domestic partner legislation would not provide the full social and cultural legitimation of same-sex unions that same-sex marriage would provide. Precisely for that reason, however, such legislation avoids many of the political, cultural, and legal problems now associated with the proposal of extending "marriage" to same-sex cohabitantsIssues in partnership legislation. To move beyond unpredictable and single-issue-oriented case law on unmarried partnerships, whether heterosexual or same-sex, thoughtful legislation must address several questions.

• Should "domestic partnership" be a formal "opt-in" or "opt-out" status with some form of registration or other public notice?

• Should legislation "regulating" cohabitation of unmarried couples extend equally to same-sex as well as heterosexual couples? Or should such legislation exclude either category?

• Should any—and if so, which—of the marriage prohibitions apply to domestic partners?

• Aside from the creation of legal rights between the parties, what "public consequences" should attend the parties’ private arrangement?

• For cohabitants who have entered into an express agreement, should it be enforceable and should it be in writing?

• Should persons be permitted to contract themselves into cohabitation relationships with legal effects that differ from "standard cohabitation" to a greater degree than standard marriage may be modified by marital contracts?

• To what extent—if at all—should the parties’ later conduct be permitted to revoke or alter their earlier express agreement or disclaimer?

• Should cohabitation without specific agreement carry consequences that depend on the parties’ intent as a court may find it was implied in their conduct; or should cohabitation without specific agreement carry no legal consequences at all?

• For cohabitants who do not have an express or implied agreement, should a cohabitation arrangement be viewed by law as creating a status that imposes specific rights and obligations on the parties, to avoid overreaching by the "stronger" party?

Harry D. Krause is the Max L. Rowe Professor of Law, Emeritus, University of Illinois–Urbana-Champaign.

- This article is an abridged and edited version of one that originally appeared on page 271 of Family Law Quarterly, Summer 2000 (34:2).

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