Emerging Models for Alternatives to Marriage

Family Law Quarterly

Volumn 33, Issue 3, 1999, Pages 663-675

  Katz, Sanford N ^a  

^a NONE

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EID: 0033274785     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (48)

1. See 557 P.2d 106 (Cal. 1976).
2. See, e.g., Omer v. Omer, 523 P.2d 957 (Wash. Ct. App. 1974); In re Estate of Thornton, 499 P.2d 864 (Wash. 1972); Poole v. Schrichte, 236 P.2d 1044 (Wash. 1951); Leong v. Leong, 27 F.2d 582 (9th Cir. 1928). For a discussion of the legal effects of nonmarital cohabitation, see WALTER O. WEYRAUCH, SANFORD N. KATZ & FRANCES OLSEN, CASES AND MATERIALS ON FAMILY LAW - LEGAL CONCEPTS AND CHANGING HUMAN RELATIONSHIPS 180-81, 213-74 (1994).
3. See Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Marvin v. Marvin, 176 Cal. Rptr. 555 (Cal. Ct. App. 1981); Marvin v. Marvin, 5 Fam. L. Rep. (BNA) 3077 (1979).
4. See Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979).
5. See Morone v. Morone, 413 N.E.2d 1154 (N.Y. 1980).
6. MINN. STAT. §§ 513.075-.076 (1989); TEX. BUS. & COM. CODE ANN. § 26.01(b) (3) (West 1987).
7. See Wilcox v. Trautz, 693 N.E.2d 141 (Mass. 1998).
8. Id. at 144-45. It is interesting to note the change in social mores and opinion in the past twenty-five years. A 1983 study that received a great deal of public attention described all aspects of couple relationships - married, living together, same-sex, urban, rural, rich, middle class, poor, with and without children, of short and long duration, and between partners of all ages. In it the researchers wrote: The whole idea behind lifetime cohabitation is that people who love each other can create a bond that does not need the state's participation and can be durable and satisfying. But relationships are both public and private. It is difficult to create an institution without support from society and this society still recognizes only marriage as an institution. Furthermore, to be an institution, cohabitation would have to have a predictable shape, and at present cohabitation takes too many forms. The fact that two partners often have very different concepts of what cohabitation means is evidence that it is not yet institutionalized. It is not recognized as a stable form by law or society; it is seen as a situation which may change at any moment. Its lack of predictability and the absence of clear understandings about what the relationship means to the participants themselves make establishing the institution of cohabitation very difficult. Before cohabitation can become an institution, its properties must be clear to any schoolchild. It must be seen as legitimate. Both partners must have the same level of commitment (or lack thereof) to the future. At the present time, we think that because there are so many possible permutations of cohabitation, partners may have trouble being sure they both want the same things out of the relationship. There is often no basis for trust, no mutual cooperation, and no ability to plan. Currently, cohabitation as a way of life is unstable. Cohabitors may be dismayed by this because they feel their love is enough and that all it takes to create a way of life is two people who see eye to eye. But they do not take into account the importance of society's reactions and how poorly society is equipped to accommodate them. For example, parents may not want to acknowledge a cohabitor's partner as a family member. Even if they want to be welcoming, they may be unsure of what to expect of such a person; they may not know how to act toward him or her. One symptom of this confused state of affairs is that cohabitation has been widely discussed and openly practiced for the past fifteen years, and yet we still do not have a term the two people can use for one another. Couples who want to create an institution should be aware of what an awesome task they have taken on. It is very hard to anticipate the results when one tries to create a new tradition and it is very hard to maintain one's resolve in the face of an unsupportive society. After all, it has taken a long time for Western marriage to evolve the features that it has. Institutions are not made or redesigned overnight. Moreover, we think it will be hard for cohabitation to become an institution while the traditional model of marriage still exists. As long as marriage retains its image as the highest form of commitment, it acts as a lure to cohabiting couples who want to prove their love for each other. So they are likely either to get married or to break up once their commitment falters. If cohabitation is to be a unique institution, it must be perceived as different from marriage, and marriage cannot be allowed to be seen as a better or next step in the relationship. But, the establishment of cohabitation as a lifetime alternative to marriage is an implied criticism of the latter, and hence is likely to be resisted by government and society in an attempt to defend the concept of matrimony. Society accepts cohabitation now only because it is thought of as a phase in person's life. It is not understood as challenging the legitimacy of marriage. PHILIP BLUMSTEIN & PEPPER SCHWARTZ, AMERICAN COUPLES 321-22 (1983).
9. See Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 COLUM. L. REV. 1164, 1165 (n. 5) (1992) (citing BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, CURRENT POPULATION REPORTS, Series P-20, No. 450 MARITAL STATUS AND LIVING ARRANGEMENTS, MARCH 1990, at 14 (1990)).
10. See Sanford N. Katz, Marriage as Partnership, 73 NOTRE DAME L. REV. 1251, 1263-68 (1998).
11. See Moriarty v. Stone, 668 N.E.2d (Mass. App. Ct. 1996). In Moriarty, the couple had lived together for ten years before they married. The court took into account the parties' premarital contributions to the assets brought into the marriage, which had lasted eight years. Even though most of the assets were held in the husband's name, they were subject to distribution according to the Massachusetts equitable distribution statute.
12. See In re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); Adoptions of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993). In both of these cases, the courts approved the adoption of children by lesbian couples.
13. See 852 P.2d 44 (Haw. 1993).
14. See 23 Fam. L. Rep. (BNA) 2001 (Dec. 10, 1996).
15. See 852 P.2d 44, 68 (Haw. 1993).
16. See Kutsch v. County of Maui, 950 P.2d 1234 (Hawaii 1998).
17. The case, Baker v. State of Vermont, was argued on November 19, 1998. As of November 19, 1999, no decision has been rendered.
18. In 1996 the U.S. Congress enacted the Defense of Marriage Act which defines marriage under federal law as "a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." In addition, the Act states that no American jurisdiction must recognize a same-sex marriage entered into in another American jurisdiction. See 28 U.S.C.A. § 1738 C (West Supp. 1997). Legislation that provides same-sex couples with certain rights was passed in the State of Hawaii in 1997 and in California in 1999. See infra notes 38-39, and accompanying text.
19. The popular and legal literature on the social acceptance and, legality of, same-sex marriage is vast. Andrew Sullivan's writings are particularly thoughtful. See generally ANDREW SULLIVAN, AN ARGUMENT ABOUT HOMOSEXUALITY (1995).
20. For a full discussion of and argument for same-sex marriages, see WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME SEX MARRIAGE 1996;
21. see also David L. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 MICH. L. REV. 447 (1996).
22. For a discussion of the case against same-sex marriage, see Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 B.Y.U.L. REV. 1.
23. See infra note 22.
24. See Vada Berger, Domestic Partnership Initiatives, 40 DEPAUL L. REV. 417, 437 (1991)
25. (quoting Note, Conflicts Between State Statutes and Municipal Ordinances, 72 HARV. L. REV. 737, 739 (1959)).
26. For an extensive analysis of the tensions between state authority and autonomous local authority, see Richard Briffault, Our Localism: Part I - The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990); Note, Conflict Between State Statutes and Municipal Ordinances, 72 HARV. L. REV. 737, 739 (1959); Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059 (1980).
27. For an extensive analysis of the tensions between state authority and autonomous local authority, see Richard Briffault, Our Localism: Part I - The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990); Note, Conflict Between State Statutes and Municipal Ordinances, 72 HARV. L. REV. 737, 739 (1959); Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059 (1980).
28. For an extensive analysis of the tensions between state authority and autonomous local authority, see Richard Briffault, Our Localism: Part I - The Structure of Local Government Law, 90 COLUM. L. REV. 1 (1990); Note, Conflict Between State Statutes and Municipal Ordinances, 72 HARV. L. REV. 737, 739 (1959); Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059 (1980).
29. For a discussion of these challenges, see Berger, supra note 21 at 437 Note, Proposal for Domestic Partnership in the City of Detroit: Challenges Under the Law, 74 DET. MERCY L. REV. 825, 835-44 (1997) (citing City of Atlanta v, McKinney, 454 S.E.2d 517 (Ga. 1995), and Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. Ct. App. 1995)).
30. See SAN FRANCISCO, CAL., ADMIN. CODE §§ 62.1-62.8 (1991). Other cities that have registration acts include: Berkeley, Laguna Beach, Long Beach, Los Angeles, Oakland, Palo Alto, Sacramento, Santa Barbara, West Hollywood, California; Boulder, Colorado; Hartford, Connecticut; Atlanta, Georgia; Oak Park, California; Iowa City, Iowa; New Orleans, Louisiana; Boston, Brookline, Cambridge, Provincetown, Massachusetts; Ann Arbor, East Lansing, Michigan; St. Louis, Missouri; Albany, Ithaca, New York City, Rochester, New York; Carrboro, Chapel Hill, North Carolina; Philadelphia, Pennsylvania; Austin, Texas, Seattle, Washington; Madison, Wisconsin. This information was obtained from the Lambda Legal Defense and Education Fund (120 Wall Street, Suite 1500, New York, NY 10005-3904). That organization's Domestic Partnership Listings (August 31, 1998) states that 103 state and municipalities offer benefits to its employees as do 123 colleges and universities, 476 private employers, and 37 labor unions.
31. For a discussion of the contractual aspects of marriage and antenuptial agreements, see Katz, supra note 10, at 1257.
32. See CITY OF CAMBRIDGE MUN. CODE §2.119.
33. The Cambridge ordinance is unique in that it accords domestic partners the right to have access to their partner's child's school records once the school is notified of the registered domestic partnership.
34. Mike Allen, Cardinal Sees Marriage Harm in Partners Bill, N. Y. TIMES, May 25, 1998, at A1.
35. See HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 549 (2d ed. 1988). See also Zablocki v. Redhail, 434 U.S. 374 (1978).
36. The Boston City Council passed a Domestic Partnership Ordinance in 1993. Mayor Thomas Menino sent the provision to the Massachusetts Legislature as a home rule petition. After a series of debates, the Massachusetts House of Representatives Speaker amended the ordinance in order to extend benefits to blood relatives of municipal employees beyond homosexual and heterosexual nonmarried couples. This amended version of the ordinance was then vetoed by Acting Governor A. Paul Cellucci.
37. Adrian Walker & Tina Cassidy, Cellucci Rejects City's Partners Bill, BOSTON GLOBE, July 31, 1998 at A1.
38. On September 11, 1994, Governor Pete Wilson of California vetoed California's version of a domestic partnership law. In so doing, Governor Wilson is quoted as saying, "Government policy ought not to discount marriage by offering a substitute relationship that demands much less, and provides much less than is needed both by the children of such relationships, and ultimately much less than is needed by society." See Domestic Partner Bill Vetoed in California, N.Y. TIMES, September 13, 1994, at A14. In the same article, Assemblyman Richard Katz, the sponsor of the bill, is quoted as saying, "This bill has nothing to do with the institution of marriage. As a matter of fact, if anything, it strengthens family values. There are people throughout California, senior citizens in particular, who don't have the ability to get married because they might lose social security or pension benefits." The article went on to state that, "of the 10.4 million households in California, nearly 500,000 consist of unmarried couples, according to the 1990 census. More than 90 percent of them are opposite-sex couples."
39. Hilary Sargent, Mayor Sets Order on Partner Benefits, BOSTON GLOBE, August 5, 1998, at B7.
40. Id.
41. For a discussion of these economic arguments, see Note, Domestic Partnerships Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 OHIO STATE L. J. 1067 (1990).
42. As of 1999, 29 states have enacted legislation banning same-sex marriage.
43. In response to the uncertainty of local home rule provisions at least three states (Massachusetts, New York, and Vermont) have extended employee benefits to domestic partners of state employees by either gubernatorial executive order or through contract employee negotiations with employee unions. See Domestic Partnership Listings (August 31, 1998), supra note 26.
44. See HAW. REV. STAT. ANN. § 572C (Supp. 1998).
45. See id.
46. See California Moves to Extend Gay Rights with New Laws, N.Y. TIMES, October 4, 1999, at A20.
47. If a state were to follow Hawaii's lead and enact a domestic partnership law endowing partners with the same rights and duties as a spouse, all state statutes that include the word "spouse" would have to be reviewed and ultimately altered. In its intestate succession law, for example, the Hawaii Legislature added "reciprocal beneficiary" to those sections that deal with the rights of a surviving spouse. See HAW. REV. STAT. ANN. § 560 (1998).
48. Contrary to Blumstein and Schwartz, history shows that alternative models can exist side-by-side. Domestic Partnership laws provide the institutional elements that they propose for social acceptance. See BLUMSTEIN & SCHWARTZ, supra note 8, at 321-22.