The regularization of nonmarital cohabitation: Rights and responsibilities in the American welfare state

Notre Dame Law Review

Volumn 76, Issue 5, 2001, Pages 1265-1310

  Blumberg, Grace Ganz ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035619102     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (196)

1. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).
2. See Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125, 1159-70 (1981).
3. See id. at 1167.
4. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
5. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
6. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
7. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
8. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
9. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
10. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
11. See, e.g., Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 OR. L. REV. 709, 711-12 (1996); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1678 (1984); Amy Lim, Comment, In Defense of Washington's Equitable Treatment of Pseudomarital Property, 29 IDAHO L. REV. 975, 995-98 (1992); Kathryn S. Vaughn, Comment, The Recent Changes to the Texas Informal Marriage Statute: Limitation or Abolition of Common-Law Marriage?, 28 Hous. L. REV. 1131, 1147-49 (1991). For criticism of the application of contract analysis to marriage and marriage-like cohabitation, see, for example, Margaret F. Brinig, Status, Contract and Covenant, 79 CORNELL L. REV. 1573, 1594-99 (1994) (reviewing MILTON C. REGAN, JR., FAMILY LAW AND THE PURSUIT OF INTIMACY (1993)), and Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 13-24 (1989). For an earlier critique of the unjust enrichment remedy, see Robert C. Casad, Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again ?, 77 MICH. L. REV. 47, 49-51 (1978).
12. See infra Part III.C.
13. See, e.g., David Charney, The Employee Welfare State in Transition, 74 TEX. L. REV. 1601, 1601-02 (1996).
14. See, e.g., MARIE GOTTSCHALK, THE SHADOW WELFARE STATE: LABOR, BUSINESS, AND THE POLITICS OF HEALTH CARE IN THE UNITED STATES 1-16 (2000). The "employee welfare state," or "shadow welfare state," overlaps but is not coextensive with the "hidden welfare state" described by Christopher Howard in THE HIDDEN WELFARE STATE: TAX EXPENDITURES AND SOCIAL POLICY IN THE UNITED STATES (1997). Howard's definition of the "hidden welfare state" includes all tax expenditures with social welfare objectives, meaning those that parallel direct expenditures for income security, health care, employment and training, housing, social services, education, and veterans' benefits. Familiar examples include tax deductions for home mortgage interest and charitable contributions. Altogether, tax expenditures with social welfare objectives cost approximately $400 billion in 1995. Id. at 3.
15. See, e.g., MARIE GOTTSCHALK, THE SHADOW WELFARE STATE: LABOR, BUSINESS, AND THE POLITICS OF HEALTH CARE IN THE UNITED STATES 1-16 (2000). The "employee welfare state," or "shadow welfare state," overlaps but is not coextensive with the "hidden welfare state" described by Christopher Howard in THE HIDDEN WELFARE STATE: TAX EXPENDITURES AND SOCIAL POLICY IN THE UNITED STATES (1997). Howard's definition of the "hidden welfare state" includes all tax expenditures with social welfare objectives, meaning those that parallel direct expenditures for income security, health care, employment and training, housing, social services, education, and veterans' benefits. Familiar examples include tax deductions for home mortgage interest and charitable contributions. Altogether, tax expenditures with social welfare objectives cost approximately $400 billion in 1995. Id. at 3.
16. See I.R.C. § 410(b) (1994).
17. The most prominent categorical assistance programs are Supplemental Security Income (SSI), 42 U.S.C. §§ 1381-1383(d) (1994), which provides benefits to the indigent aged and disabled, and Temporary Assistance for Needy Families (TANF), id. §§ 601-617 (Supp. IV 1999), which replaced Aid to Families With Dependent Children (AFDC), id. (1994).
18. In 1998, Census Bureau data show 55,303,000 married couples and 5,910,000 unmarried couples. Of the unmarried couples, 4,236,000 were opposite-sex couples, and 1,674,000 were same-sex couples. Stated otherwise, there were eleven unmarried couples for every 100 married couples. Of the eleven unmarried couples, eight were opposite-sex couples, and three were same-sex couples. See infra note 11, chart 2. Id.; BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-496, UNPUBLISHED TABLES - MARITAL: STATUS AND LIVING ARRANGEMENTS: MARCH 1996 (UPDATE) 71-73 tbl.8 (1998), at http://www.census.gov/prod/3/98pubs/p20-496u.pdf (last visited August 30, 2001); BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-484, MARITAL STATUS AND LIVING ARRANGEMENTS: MARCH 1994 at 71-73 tbl.8 (1996), available at http://www.census.gov/prod/1/pop/p20-484.pdf (last visited August 30, 2001). Same-sex couples are almost half as frequent as unmarried opposite-sex couples. At any given time, nearly half of gay men and more than half of lesbians report themselves in a relationship with a primary partner, and many of these have exchanged rings or otherwise engaged in a commitment ceremony. See sources cited in 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, 449 nn.3-6 (1996).
19. In 1998, Census Bureau data show 55,303,000 married couples and 5,910,000 unmarried couples. Of the unmarried couples, 4,236,000 were opposite-sex couples, and 1,674,000 were same-sex couples. Stated otherwise, there were eleven unmarried couples for every 100 married couples. Of the eleven unmarried couples, eight were opposite-sex couples, and three were same-sex couples. See infra note 11, chart 2. Id.; BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-496, UNPUBLISHED TABLES - MARITAL: STATUS AND LIVING ARRANGEMENTS: MARCH 1996 (UPDATE) 71-73 tbl.8 (1998), at http://www.census.gov/prod/3/98pubs/p20-496u.pdf (last visited August 30, 2001); BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-484, MARITAL STATUS AND LIVING ARRANGEMENTS: MARCH 1994 at 71-73 tbl.8 (1996), available at http://www.census.gov/prod/1/pop/p20-484.pdf (last visited August 30, 2001). Same-sex couples are almost half as frequent as unmarried opposite-sex couples. At any given time, nearly half of gay men and more than half of lesbians report themselves in a relationship with a primary partner, and many of these have exchanged rings or otherwise engaged in a commitment ceremony. See sources cited in 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, 449 nn.3-6 (1996).
20. In 1998, Census Bureau data show 55,303,000 married couples and 5,910,000 unmarried couples. Of the unmarried couples, 4,236,000 were opposite-sex couples, and 1,674,000 were same-sex couples. Stated otherwise, there were eleven unmarried couples for every 100 married couples. Of the eleven unmarried couples, eight were opposite-sex couples, and three were same-sex couples. See infra note 11, chart 2. Id.; BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-496, UNPUBLISHED TABLES - MARITAL: STATUS AND LIVING ARRANGEMENTS: MARCH 1996 (UPDATE) 71-73 tbl.8 (1998), at http://www.census.gov/prod/3/98pubs/p20-496u.pdf (last visited August 30, 2001); BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS, SERIES P20-484, MARITAL STATUS AND LIVING ARRANGEMENTS: MARCH 1994 at 71-73 tbl.8 (1996), available at http://www.census.gov/prod/1/pop/p20-484.pdf (last visited August 30, 2001). Same-sex couples are almost half as frequent as unmarried opposite-sex couples. At any given time, nearly half of gay men and more than half of lesbians report themselves in a relationship with a primary partner, and many of these have exchanged rings or otherwise engaged in a commitment ceremony. See sources cited in 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, 449 nn.3-6 (1996).
21. See, e.g., Education Amendments of 1972, tit. 9, 20 U.S.C. § 1681 (1994) (prohibiting sex discrimination in any education program or activity receiving federal financial assistance); Equal Pay Act of 1963, 29 U.S.C. § 206 (1994) (prohibiting sex-based wage discrimination); Civil Rights Act of 1964, tit. 7, 42 U.S.C. § 2000e to e-17 (1994) (prohibiting discrimination in employment on the basis or race, color, religion, sex, or national origin).
22. Defense of Marriage Act'(DOMA), Pub. L. No. 104-199, 110 Slat. 2419 (1996) (codified as amended at 28 U.S.C. § 1738C (Supp. IV 1998) (providing that states are not required to recognize sister state same-sex marriages) and 1 U.S.C. § 37 (Supp. IV 1999) (providing that the federal government does not recognize same-sex marriages)). The enactment of DOMA was prompted by Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), and Baehr v. Miike, No. CIV.91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), affd, 950 P.2d 1234 (Haw. 1997). Baehr v. Lewin is discussed infra text accompanying notes 36-43.
23. See infra notes 75-78 and accompanying text.
24. The University of California plan, described infra at notes 82-101 and accompanying text, is illustrative. See infra note 92.
25. For accounts of changing child support policy in England, see Jane Lewis, Family Policy in the Post-war Period, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND 81, 94-100 (Sanford N. Katz et al. eds., 2000), and Mavis Maclean, Delegalized Family Obligations, in FAMILY LAW AND FAMILY POLICY IN THE NEW EUROPE 129, 130-36 (Jacek Kurczewski & Mavis Maclean eds., 1997). For a contrasting account of American law, see Barry L. Friedman & Martin Rein, The Evolution of Family Policy in the United States after World War II, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra, at 101, 110-11.
26. For accounts of changing child support policy in England, see Jane Lewis, Family Policy in the Post-war Period, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND 81, 94-100 (Sanford N. Katz et al. eds., 2000), and Mavis Maclean, Delegalized Family Obligations, in FAMILY LAW AND FAMILY POLICY IN THE NEW EUROPE 129, 130-36 (Jacek Kurczewski & Mavis Maclean eds., 1997). For a contrasting account of American law, see Barry L. Friedman & Martin Rein, The Evolution of Family Policy in the United States after World War II, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra, at 101, 110-11.
27. For accounts of changing child support policy in England, see Jane Lewis, Family Policy in the Post-war Period, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND 81, 94-100 (Sanford N. Katz et al. eds., 2000), and Mavis Maclean, Delegalized Family Obligations, in FAMILY LAW AND FAMILY POLICY IN THE NEW EUROPE 129, 130-36 (Jacek Kurczewski & Mavis Maclean eds., 1997). For a contrasting account of American law, see Barry L. Friedman & Martin Rein, The Evolution of Family Policy in the United States after World War II, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra, at 101, 110-11.
28. Writing about property division and spousal support in England, John Eekelaar observes: As far as the law on financial provision is concerned, the disjuncture between the formal basis of the law (dissolution of marriage) and its underlying substance (sharing of resources acquired during a failed common enterprise - specifically the task of beginning to bring up a child) seems to be becoming more visible. The extension of the substance in due course to unmarried cohabitants who also have children seems irresistible. John Eckelaar, Post-divorce Financial Obligations, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra note 16, at 405, 421. Although England has not systematically applied its marriage laws to cohabitants, Gillian Douglas observes: Two basic approaches can be discerned. The first was to give cohabitation some recognition as a distinct status, and to equate it with marriage by giving to cohabitants the same legal benefits and burdens that are given to spouses. Gillian Douglas, Marriage, Cohabitation, and Parenthood - From Contract to Status, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra note 16, at 211, 213. Those benefits and burdens include entitlement to succeed to a tenancy, to claim provision from a decedent's estate, and to wrongful death benefits. Id.
29. Writing about property division and spousal support in England, John Eekelaar observes: As far as the law on financial provision is concerned, the disjuncture between the formal basis of the law (dissolution of marriage) and its underlying substance (sharing of resources acquired during a failed common enterprise - specifically the task of beginning to bring up a child) seems to be becoming more visible. The extension of the substance in due course to unmarried cohabitants who also have children seems irresistible. John Eckelaar, Post-divorce Financial Obligations, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra note 16, at 405, 421. Although England has not systematically applied its marriage laws to cohabitants, Gillian Douglas observes: Two basic approaches can be discerned. The first was to give cohabitation some recognition as a distinct status, and to equate it with marriage by giving to cohabitants the same legal benefits and burdens that are given to spouses. Gillian Douglas, Marriage, Cohabitation, and Parenthood - From Contract to Status, in CROSS CURRENTS: FAMILY LAW AND POLICY IN THE US AND ENGLAND, supra note 16, at 211, 213. Those benefits and burdens include entitlement to succeed to a tenancy, to claim provision from a decedent's estate, and to wrongful death benefits. Id.
30. See Friedman & Rein, supra note 16, at 111-21.
31. See GUY STANDING, GLOBAL LABOUR FLEXIBILITY: SEEKING DISTRIBUTIVE JUSTICE 251-91 (1999); LOUKAS TSOUKALIS, THE NEW EUROPEAN ECONOMY REVISITED 114-37 (1997). See generally EUROPEAN SOCIAL POLICY: BETWEEN FRAGMENTATION AND INTEGRATION (Stephan Liebfried & Paul Pierson eds., 1995).
32. See GUY STANDING, GLOBAL LABOUR FLEXIBILITY: SEEKING DISTRIBUTIVE JUSTICE 251-91 (1999); LOUKAS TSOUKALIS, THE NEW EUROPEAN ECONOMY REVISITED 114-37 (1997). See generally EUROPEAN SOCIAL POLICY: BETWEEN FRAGMENTATION AND INTEGRATION (Stephan Liebfried & Paul Pierson eds., 1995).
33. See GUY STANDING, GLOBAL LABOUR FLEXIBILITY: SEEKING DISTRIBUTIVE JUSTICE 251-91 (1999); LOUKAS TSOUKALIS, THE NEW EUROPEAN ECONOMY REVISITED 114-37 (1997). See generally EUROPEAN SOCIAL POLICY: BETWEEN FRAGMENTATION AND INTEGRATION (Stephan Liebfried & Paul Pierson eds., 1995).
34. It sometimes even provides for family members with whom the worker does not share a household, such as children from a prior marriage who reside with the other parent.
35. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976).
36. See infra note 105.
37. See infra notes 138-56 and accompanying text.
38. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES (Tentative Draft 2000)].
39. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES (Tentative Draft 2000)].
40. See infra Part II.A.
41. See, e.g., infra text accompanying note 65.
42. See, for example, the UCLA affidavit for same-sex cohabitants, reprinted infra at text accompanying note 94.
43. The extension of employment-based benefits to the nonmarital partner of an employee is not based on the rationale that the employee has any legal duty to support the nonmarital cohabitant, for the employee ordinarily does not. (By contrast, this is a frequent rationale for the extension of public and private benefits to family members of an employee. From this perspective, the equality claim is unavailing because the married employee and the cohabiting employee are not equally situated. One owes a duty of support to his spouse; the other generally does not owe a duty of support to his cohabitant.) Instead, the extension of benefits is more plausibly based on the economics of a family household. Whether or not cohabitants who share a household are legally bound to do so, they can be expected to provide each other with support. This rationale also justifies the occasional extension of health benefits to a dependent aged parent or adult child who resides with a covered employee. The core notion is that any householder can reasonably be expected to support family members with whom he or she shares the household.
44. See, e.g., ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03(7) (j).
45. See, e.g., Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (rejecting the claim of same-sex marriage applicants who invoked the constitutional rights of free exercise of religion, freedom of association, and freedom to marry); Baker v. Nelson, 291 N.W.2d 185, 186-87 (Minn. 1971) (rejecting same-sex marriage applicants' equal protection and due process claims); Singer v. Hara, 522 P.2d 1187, 1195-97 (Wash. Ct. App. 1974) (rejecting the claim of same-sex marriage applicants despite an equal rights amendment to the state constitution). For contemporaneous commentary, see Comment, The Legality of Homosexual Marriage, 82 YALE L.J. 573, 574-83 (1972), and Note, Homosexuals' Right to Marry: A Constitutional Test and a Legislative Solution, 128 U. PA. L. REV. 193, 197-213 (1979).
46. See, e.g., Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. 1973) (rejecting the claim of same-sex marriage applicants who invoked the constitutional rights of free exercise of religion, freedom of association, and freedom to marry); Baker v. Nelson, 291 N.W.2d 185, 186-87 (Minn. 1971) (rejecting same-sex marriage applicants' equal protection and due process claims); Singer v. Hara, 522 P.2d 1187, 1195-97 (Wash. Ct. App. 1974) (rejecting the claim of same-sex marriage applicants despite an equal rights amendment to the state constitution). For contemporaneous commentary, see Comment, The Legality of Homosexual Marriage, 82 YALE L.J. 573, 574-83 (1972), and Note, Homosexuals' Right to Marry: A Constitutional Test and a Legislative Solution, 128 U. PA. L. REV. 193, 197-213 (1979).
47. See generally, e.g., Paula L. Ettelbrick, Since When Is Marriage a Path to Liberation?, OUT/LOOK, Fall 1989, at 9.
48. See, e.g., Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage, " 79 VA. L. REV. 1535, 1536 (1993).
49. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 75-77 (1996); Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK, Fall 1989, at 9, 10-13. But see Steven K. Homer, Note, Against Marriage, 29 HARV. C.R.-C.L. L. REV. 505, 530 (1994). See generally ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995).
50. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 75-77 (1996); Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK, Fall 1989, at 9, 10-13. But see Steven K. Homer, Note, Against Marriage, 29 HARV. C.R.-C.L. L. REV. 505, 530 (1994). See generally ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995).
51. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 75-77 (1996); Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK, Fall 1989, at 9, 10-13. But see Steven K. Homer, Note, Against Marriage, 29 HARV. C.R.-C.L. L. REV. 505, 530 (1994). See generally ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995).
52. See WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO CIVILIZED COMMITMENT 75-77 (1996); Thomas B. Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK, Fall 1989, at 9, 10-13. But see Steven K. Homer, Note, Against Marriage, 29 HARV. C.R.-C.L. L. REV. 505, 530 (1994). See generally ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT HOMOSEXUALITY (1995).
53. See sources cited supra notes 31-33. On the face of it, the pro argument was more powerful than the con argument in the sense that mere guarantee of access does not require participation in a legal institution. Even with access to the status or incidents of marriage, gays and lesbians could still choose to decline both as well as long-term monogamous relationships. However, the movement to regularize same-sex cohabitation, once undertaken, is likely to reach the relationships of members of the anti-regulation group as well. See infra Part III.
54. According to the Restatement, A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283(2) (1971). The strong public policy provision generally comes into play when the marriage would violate some criminal law of the state. In most American states, same-sex marriage would not violate any criminal law. This choice-of-law principle would ordinarily apply even though the home state would not itself allow the parties to contract a same-sex marriage in the home state. After the early same-sex marriage cases of the 1970s, a number of states redrafted their marriage statutes to specify that a marriage may only be contracted between a man and a woman. See, for example, CAL. FAM. CODE § 306 (West 1994), which defines marriage as "a personal relation arising out of a civil contract between a man and a woman." In 1977, the California legislature added the words "between a man and a woman" to signify that same-sex couples cannot be lawfully married in California. See 1977 Cal. Stat. 339. Nevertheless, California courts ordinarily recognize a marriage lawfully contracted in another jurisdiction, even though the marriage would not satisfy California marriage requirements if it were contracted in California. California courts regularly recognize, for example, common-law marriages validly contracted elsewhere, even though California abolished common-law marriage in 1895 and therefore would not recognize a purported common-law marriage contracted in California after that date. See, e.g., In re Marriage of Smyklo, 226 Cal. Rptr. 174 (Ct. App. 1986) (recognizing an Alabama common-law marriage). To obviate the possibility that California courts might recognize same-sex marriages contracted elsewhere, the California electorate approved Proposition 22 in March 2000. See Jenifer Warren, Proposition 22: Ban on Gay Marriages Wins in All Regions but Bay Area, L.A. TIMES, Mar. 8, 2000, at A23.
55. 852 P.2d 44 (Haw. 1993).
56. Id. at 67.
57. Id. at 64. The court found inspiration in Loving v. Virginia, 388 U.S. 1, 12 (1967), which may be understood to give a similar reading to the Equal Protection Clause of the Fourteenth Amendment. Striking down Virginia's anti-miscegenation laws on the grounds of equal protection and substantive due process, the United States Supreme Court rejected Virginia's argument that its prohibition of interracial marriages satisfied the Equal Protection Clause because it treated all races equally in that no person of one race was allowed to marry a person of another race. Id. at 8.
58. Baehr v. Miike, No. CIV.91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996), affd, 950 P.2d 1234 (Haw. Dec. 3, 1997).
59. See Deb Price, Elections Reject Republican Extremism, DETROIT NEWS, Nov. 9, 1998, at All.
60. HAW. REV. STAT. ANN. §§ 572C-1 to -7 (Michie 1999).
61. 1997 Haw. Sess. Laws, Act 383, (H.B. 118) § 2. Even so, the legislation appears to have been controversial. It became law without the Governor's signature. See HAW. REV. STAT. ANN. § 572C-2.
62. See HAW. REV. STAT. ANN. § 572C-3 to -7.
63. VT. CONST. ch. 1, art. 7.
64. 744 A.2d 864 (Vt. 1999).
65. Id. at 886.
66. Id.
67. An Act Relating to Civil Unions, 1999 Vt. Acts & Resolves 91 (codified in scattered sections of VT. ST. ANN.).
68. VT. STAT. ANN. tit. 15, § 1204 (2000).
69. Id. § 1202; VT. STAT. ANN. tit. 18, §§ 5160-5169 (2000).
70. VT. STAT. ANN. tit. 15, § 1203. Compare the Hawaii legislation, which requires ineligibility to many on account of, inter alia, consanguinity. The Hawaii legislation may be read, darkly, to foster domestic relationships that, if they become sexual, would violate Hawaii's incest laws. HAW. REV. STAT. ANN. § 572C-4 (Michie 1999).
71. VT. STAT. ANN. tit. 15, § 1202; VT. STAT. ANN. tit. 18, §§ 5160-5169.
72. VT. STAT. ANN. tit. 15, § 1206.
73. Id. § 1204.
74. VT. STAT. ANN. tit. 8, § 4063a (2000).
75. See VT. STAT. ANN. tit. 32, § 7401 (a) (2000).
76. Id. §§ 3001, 5812.
77. See id. §§ 3001, 5812, 7401 (a).
78. California, for example, enacted relatively modest domestic partnership legislation before the voters approved Proposition 22, which provides that California will not recognize same-sex marriages lawfully contracted elsewhere. See 1999 Cal. Stat. 588. The proponents of Proposition 22 emphasized that they did not oppose domestic partnership legislation; their goal was merely to preserve the special status of marriage for opposite-sex couples alone. See David O. Coolidge, Marriage Is Not Meant for Same-Sex Couples, L.A. TIMES, Feb. 28, 2000, at B5.
79. See text accompanying infra notes 61-68.
80. See Craig A. Bowman & Blake M. Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 COLUM. L. REV. 1164, 1188-92 (1992) (discussing the municipal ordinances).
81. 1999 Cal. Stat. 588.
82. Id.
83. See id.
84. See id.
85. See id.
86. See id. (adding CAL. FAM. CODE § 297 (West Supp. 2001), CAL. GOV'T CODE § 22867 (West Supp. 2001), and CAL. HEALTH & SAFETY CODE § 1261 (West 2000)).
87. See, for example, A.B. 25, 2001-02 Leg., Reg. Sess. (Cal. 2001), which would extend the following rights historically reserved for spouses to registered domestic partners: derivative tort claims, including loss of consortium and wrongful death claims; right to make medical treatment decisions for each other; extension of derivative group health insurance to the domestic partners of subscribers on the same terms normally provided for a subscriber's dependents; extension of sick leave, when provided to an employee to care for a spouse or child, to the provision of care for an employee's domestic partner or child of a domestic partner; extension of spousal conservatorship rules to domestic partners; extension of statutory will, intestacy rights, . and administration rights to domestic partners; exclusion from taxable income, under California income tax law, of employer-provided health insurance for a domestic partner of an employee (an exclusion not allowed by federal income tax law, see infra note 87); and, for purposes of eligibility for unemployment compensation benefits, "good cause" for leaving employment includes accompanying one's domestic partner to a new location. Assembly Bill 25 is the "modest" bill. The more expansive A.B. 1338, 2001-02 Leg., Reg. Sess. (Cal. 2001), would follow the Vermont model, see text accompanying supra notes 48-58, and create a civil union status that provides all the rights and obligations of marriage.
88. See supra note 30 and accompanying text.
89. See Baker v. State, 744 A.2d 864, 867 (Vt. 1999).
90. See An Act Relating to Civil Unions, 1999 Vt. Acts & Resolves 91 (codified in scattered sections of VT. STAT. ANN.).
91. See supra notes 60-68 and accompanying text.
92. From the American perspective, the European exclusion of rights pertaining to the adoption of children is noteworthy. Even before the introduction of any notion of domestic partnership, American law was relatively permissive on gay and lesbian adoption of children, both with respect to children who were fully adoptable and the children of a same-sex domestic partner. See sources cited in ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03, reporter's n. cmt. d.
93. The European statutes are collected in RECOGNISING SAME-SEX RELATIONSHIPS 11-16 (Law Commission of New Zealand, Study Paper 4, 1999).
94. In 1982, the Village Voice, a New York City weekly newspaper, became the first employer to offer domestic partner benefits to gay and lesbian employees. In 1992, Lotus Development Corporation became the first publicly traded company to offer domestic partner benefits. A 1997 survey by KPMG Peat Marwick found that thirteen percent of U.S. employers extended health care benefits to domestic partners. By 2001, more than 2500 public and private employers had extended health care benefits to domestic partners. See Human Rights Campaign, What Are Domestic Partner Benefits, at http://www.hrc.org/worknet/dp/dp_whatisdp.asp (last visited Apr. 7, 2001).
95. See id. The Human Rights Campaign reports that 116 of the Fortune 500 companies offer domestic partner health benefits, including six of the top ten companies. Human Rights Campaign, Fortune 500 Companies That Offer Domestic Partner Health Benefits, at http://www.hrc.org/equalityatexxon/fortune.asp (last visited Feb. 22, 2001). Data on whether the benefits are extended only to same-sex partners or also to opposite-sex domestic partners are incomplete. In companies for which such data are available, approximately forty percent offer benefits to same-sex partners only; the remaining sixty percent offer benefits to same-sex and opposite-sex domestic partners. Id.
96. The Human Rights Campaign reports that 129 colleges and universities offer domestic partner health benefits. Human Rights Campaign, Colleges and Universities That Offer Domestic Partner Health Benefits, at http://www.hrc.org/worknet/index.asp (last visited Feb. 22, 2001). Data on whether the benefits are extended only to same-sex partners or also to opposite-sex domestic partners are incomplete. For colleges and universities for which such data are available, approximately fifty-eight percent offer benefits to same-sex partners only; the remaining forty-two percent offer benefits to same-sex and opposite-sex domestic partners. Id.
97. The Human Rights Campaign reports that ninety-eight state and local governments offer domestic partner health benefits. Human Rights Campaign, State and Local Governments that Offer Domestic Partner Health Benefits, at http://www.hrc.org/ worknet/index.asp (last visited Feb. 22, 2001). Data on whether the benefits are extended only to same-sex partners or also to opposite-sex domestic partners are incomplete. For state and local governments for which such data are available, approximately twenty-five percent offer benefits to same-sex partners only; the remaining seventy-five percent offer benefits to same-sex and opposite-sex domestic partners. Id. State governments offering domestic partner health benefits to their employees include California, Connecticut, New York, Oregon, Vermont, and Washington. Id. Major cities include Albany, Albuquerque, Atlanta, Baltimore, Chicago, Denver, Gainesville, Iowa City, Los Angeles, New Orleans, New York, Philadelphia, Phoenix, Pittsburgh, Portland, Providence, Rochester, Sacramento, San Diego, San Francisco, Santa Barbara, Seattle, and Tucson. Id.
98. See GOTTSCHALK, supra note 7, at 39-64.
99. These include the means-tested categorical public assistance programs that include a health care component (Medicaid), the Clinton-era children's program for health insurance, and OASDI (Old Age, Survivors and Disability Insurance), commonly called Social Security, with its companion Medicare program.
100. See I.R.C. § 410(b) (1994).
101. Some, but not all, of these benefits originate with the University of California and are system-wide. This is true of the health plan. On the other hand, other benefits, such as child care, primary education, and recreational facilities, are local.
102. These benefits run afoul of the nondiscrimination rules and thus do not receive favorable tax treatment. Most notably from the employee's perspective, they are treated like cash income and their value is thus taxed to the employee. By contrast, benefits that conform to the nondiscrimination rules are nontaxable to the employee.
103. It is frequently observed that employee benefits are part of a worker's compensation package. This is true in two respects. Employment is a precondition to benefits, and net employer expenditure for benefits diminishes pro tanto the fund available for wage compensation. However, that granted, employee benefits resemble welfare benefits more than they do ordinary wage compensation. In the case of health coverage, for example, the value of the benefit to each employee varies according to the family circumstances of the employee and the health of the employee and his derivative family beneficiaries. Income, whether cash or in-kind, is normally subject to the personal income tax. However, the federal government exempts in-kind employee benefits from income taxation, just as it ordinarily exempts need-based welfare benefits provided by the state. (The Internal Revenue Service treats welfare payments as nontaxable income. The service takes the view that such payments are not within the contemplation of the I.R.C. § 61 definition of gross income. See Rev. Rul. 76-144, 1976-1 C.B. 17 (stating that disaster relief grants are not taxable income to recipients); Rev. Rul. 74-205, 1974-1 C.B. 20 (stating that the IRS has consistently held that payments made under legislatively provided social benefit programs for promotion of the general welfare are not includible in a recipient's gross income); Rev. Rul. 63-136, 1963-2 C.B. 12 (stating that cash benefits paid to persons undergoing on-the-job training in the Federal Manpower program are not taxable income to the recipients); Rev. Rul. 57-102, 1957-1 C.B. 26 (stating that state welfare benefits for the blind are not includible in the gross income of the recipients for federal income tax purposes).) Given the lack of universal health coverage in the United States, the direction of this tax subsidy is troubling. Effectively, those who do not have employer-provided group health insurance subsidize those who do.
104. See, e.g., James E. Donovan, An Ethical Argument to Restrict Domestic Partnerships to Same-Sex Couples, 8 LAW & SEXUALITY 649, 666 n.63 (1998) (reporting an e-mail communication in which Suzanne Goldberg, staff attorney for Lamda Legal Defense and Education Fund (LLDEF), explained that LLDEF supports inclusion of opposite-sex, as well as same-sex, couples in domestic partnership plans on the ground that these are largely economic issues of equal compensation). Alternatively, employees might claim that workers with equal wages should have equal benefits; in other words, a worker's benefit package should correspond in value to his wages. In other words, higher-wage employees should have better benefit packages. Federal anti-discrimination rules stifle this claim and, in doing so, shed light on the role that benefits play in the national welfare scheme.
105. See I.R.C. § 410(b) (1994).
106. However, the exemption from income taxation does not extend equally to benefits provided for a domestic partner, as opposed to a spouse, of an employee. Under federal income tax law, married employees may exclude spousal coverage from income. Unmarried employees may only exclude the value of partner coverage if the partner is a dependent of the employee. I.R.C. §§ 105(B), 106, 152 (1994 & Supp. V 1999); see also Lindsay Brooke King, Enforcing Conventional Morality Through Taxation? Determining the Excludability of Employer-Provided Domestic Partner Benefits Under Sections 105(B) and 106 of the Internal Revenue Code, 53 WASH. & LEE L. REV. 301, 303 (1996); William V. Vetter, Restrictions on Equal Treatment of Unmarried Domestic Partners, 5 B.U. PUB. INT. L.J. 1, 5-12 (1995).
107. However, the exemption from income taxation does not extend equally to benefits provided for a domestic partner, as opposed to a spouse, of an employee. Under federal income tax law, married employees may exclude spousal coverage from income. Unmarried employees may only exclude the value of partner coverage if the partner is a dependent of the employee. I.R.C. §§ 105(B), 106, 152 (1994 & Supp. V 1999); see also Lindsay Brooke King, Enforcing Conventional Morality Through Taxation? Determining the Excludability of Employer-Provided Domestic Partner Benefits Under Sections 105(B) and 106 of the Internal Revenue Code, 53 WASH. & LEE L. REV. 301, 303 (1996); William V. Vetter, Restrictions on Equal Treatment of Unmarried Domestic Partners, 5 B.U. PUB. INT. L.J. 1, 5-12 (1995).
108. See sources cited supra note 84.
109. And then: "Why have the benefit at all? Why not let the market provide?" (Of course, the follow-up objections would not be made about health care, from which all stand to benefit, so I assume that the gravamen of these follow-up arguments is simply: "I don't stand to benefit at all.")
110. Most notably in California, both spouses have "present, existing, and equal interests" in the marital earnings of either spouse. CAL. FAM. CODE § 751 (West 1994). Subsequently, the system-wide University of California Faculty Welfare Committee tried to piggy-back on the grant of health benefits to same-sex partners to obtain further extension to opposite-sex partners. See UNIV. COMM. ON FACULTY WELFARE, ACADEMIC SENATE, UNIV. OF CAL., ENSURING FULL EQUALITY IN BENEFITS FOR UC EMPLOYEES WITH DOMESTIC PARTNERS 3 (1999) [hereinafter ENSURING FULL EQUALITY]. Failure to include the latter, it implied, is a form of prohibited discrimination on the basis of sexual orientation and marital status. In other words, extension of health benefits only to same-sex partners impermissibly discriminates against opposite-sex partners on the basis of sexual orientation. And, allowing benefits for married persons but not opposite-sex cohabitants discriminates against the latter on the basis of marital status. Essentially, the argument was that the declaration required of same-sex couples should also suffice for opposite-sex couples, and it is immaterial (i) that the former cannot many and the latter can and (ii) that the declaration required of same-sex domestic partners encompasses rights and responsibilities far more limited than those imposed by the law of marriage. Id.
111. Most notably in California, both spouses have "present, existing, and equal interests" in the marital earnings of either spouse. CAL. FAM. CODE § 751 (West 1994). Subsequently, the system-wide University of California Faculty Welfare Committee tried to piggy-back on the grant of health benefits to same-sex partners to obtain further extension to opposite-sex partners. See UNIV. COMM. ON FACULTY WELFARE, ACADEMIC SENATE, UNIV. OF CAL., ENSURING FULL EQUALITY IN BENEFITS FOR UC EMPLOYEES WITH DOMESTIC PARTNERS 3 (1999) [hereinafter ENSURING FULL EQUALITY]. Failure to include the latter, it implied, is a form of prohibited discrimination on the basis of sexual orientation and marital status. In other words, extension of health benefits only to same-sex partners impermissibly discriminates against opposite-sex partners on the basis of sexual orientation. And, allowing benefits for married persons but not opposite-sex cohabitants discriminates against the latter on the basis of marital status. Essentially, the argument was that the declaration required of same-sex couples should also suffice for opposite-sex couples, and it is immaterial (i) that the former cannot many and the latter can and (ii) that the declaration required of same-sex domestic partners encompasses rights and responsibilities far more limited than those imposed by the law of marriage. Id.
112. I leave aside the instrumental issues of recruitment and retention. In justifying their extension of health coverage to the same-sex partners of University of California employees to Republican Governor Pete Wilson, who strongly opposed the move and had appointed many of them, the Regents buttressed their equality rationale with the need to compete with other leading universities that were already offering benefits to same-sex partners. Recruitment and retention surely were issues for a state university system that was somewhat late to join the trend. Moreover, the tight labor market of the prosperous 1990s generally gave employers strong incentive to enhance (generally noninflationary) employee benefits as a means of attracting new employees. The tight labor market may explain the rapid spread of same-sex partner benefits, but it does not explain their genesis or their particular rationales.
113. The Academic Council, an advisory body to the Regents, took the opposite position, recommending that the University of California provide health benefits to opposite-sex partners as well. See ENSURING FULL EQUALITY, supra note 90. The Regents extended health benefits to same-sex domestic partners on the same terms that they offered to the families of married employees, that is to partners and the dependent children of either partner.
114. An employee claiming same-sex partner health benefits must submit upon request proof of at least three of the following items: joint mortgage or joint tenancy on a residential lease; joint bank account; joint liabilities (e.g., credit cards or car loans); joint ownership of significant property (e.g., cars); durable property or health care powers of attorney; wills, life insurance policies or retirement annuities naming each other as primary beneficiary; written agreements or contracts showing mutual support obligations or joint ownership of assets acquired during the relationship. UNIV. OF CAL., AFFADAVTT OF SAME-SEX DOMESTIC PARTNERSHIP OR ADULT DEPENDENT RELATIVE RELATIONSHIP 1-2 (2000), available at http://www.ucop.edu/bencom/ forms/forms.html (last modified July 3, 2001).
115. Id.
116. Id.
117. UNIV. OF CAL., RETIREMENT PLAN SUMMARY PLAN DESCRIPTION 14-20 (2000), available at http://ww.ucop.edu/bencom/rs/ucrp.html (last modified July 27, 2001).
118. Id. at 17-18.
119. Id.
120. Federal law provides short-term relief for persons who have lost eligibility for employer-provided group health insurance on account of certain qualifying events, including divorce. The Consolidated Omnibus Budget Amendment Act of 1985 (COBRA) requires that the sponsors of ERISA-regulated group health insurance plans offer an employee's divorced spouse thirty-six months of individual health insurance continuation. 29 U.S.C. §§ 1161-1168 (1994). The sponsor may charge the divorced spouse the full premium. Id.
121. For a national survey, see Grace Ganz Blumberg, Marital Property Treatment of Pensions, Disability Pay, Workers' Compensation, and Other Wage Substitutes: An Insurance, or Replacement, Analysis, 33 UCLA L. REV. 1250, 1256-66, 1290-98 (1986). When the value of the pension is substantially related to the number of years of service, a "time rule" is usually applied to determine the fractional marital interest in the pension. The numerator is the number of years of service during the marriage, and the denominator is the total number of years of service that contribute to the value of the pension. See, e.g., In re Marriage of Gowan, 62 Cal. Rptr. 2d 453, 456-59 (Ct. App. 1997); In re Marriage of Poppe, 158 Cal. Rptr. 500, 503-04 (Ct. App. 1979).
122. See CAL. FAM. CODE § 2550 (West 1994) (providing that "the court shall . . . divide the community estate of the parties equally").
123. See ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03, reporter's n. cmt. c; Blumberg, supra note 2, at 1160-70; sources cited supra note 4. Application of the rubric of contract to nonmarital cohabitation has generated considerable dissatisfaction, for it tends to produce two problems. Either courts reach harsh and undesirable results by applying contract law strictly. Or, in an effort to avoid harsh results, courts play havoc with contract law, distending it beyond recognition. Moreover, the contractual rubric tends to be very difficult and time-consuming to administer.
124. 109 Cal. Rptr. 862, 866-67 (Ct. App. 1973). To the same effect, see Estate of Atherley, 119 Cal. Rptr. 41, 46-48 (Ct. App. 1975). But see Beckman v. Mayhew, 122 Cal. Rptr. 604, 607-08 (Ct. App. 1975) (rejecting the holding and analysis of Gary and Atherley).
125. CAL. Civ. CODE §§ 4000-5137 (West 1994) (repealed 1992).
126. See Connell v. Francisco, 898 P.2d 831, 835-37 (Wash. 1995) (holding that at the dissolution of "meretricious" relationships, the court should rely on the community property laws to divide between the partners all property that would have been community property had they been married). Connell provides guidance in identifying "meretricious relationships" for the purpose of this rule. Calling the phrase "a term of art," it described a "meretricious relationship" as a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist. . . . Relevant factors establishing a meretricious relationship include, but are not limited to: continuous cohabitation, duration of the relationship, purpose of the relationship, pooling of resources and services for joint projects, and the intent of the parties. . . . [A] relationship need not be "long term" to be characterized as a meretricious relationship. . . . While a "long term" relationship is not a threshold requirement, duration is a significant factor. A "short term" relationship may be characterized as meretricious, but a number of significant and substantial factors must be present. Id. at 834 (citations omitted); see also Marriage of Lindsey, 678 P.2d 328, 331 (Wash. 1984) ("[C]ourts must 'examine the [meretricious] relationship and the property accumulations and make a just and equitable disposition of the property." (alteration in original) (quoting Latham v. Hennessey, 554 P.2d 1057, 1059 (Wash. 1976))); Foster v. Thilges, 812 P.2d 523, 526 (Wash. Ct. App. 1991) (holding that the court need not resolve the parties' conflicting claims regarding their intentions in acquiring property, because "[w]here the relationship was long-term, stable, pseudomarital and the undertakings were joint projects as in the instant case, . . . the couple's property is to be divided justly and equitably, applying community property principles").
127. See, e.g., Pickens v. Pickens, 490 So. 2d 872, 875-76 (Miss. 1986) (holding that a homemaker has an equitable claim to property accumulated during a long-term, cohabiting relationship, without regard to a contract inquiry); see also Evans v. Wall, 542 So. 2d 1055, 1056-57 (Fla. Dist. Ct. App. 1989) (imposing a constructive trust or, alternatively, an equitable lien to allow a woman to recover for contributions made to improve her former partner's land); Sullivan v. Rooney, 533 N.E.2d 1372, 1374 (Mass. 1989) (relying upon constructive trust doctrine to award a woman a one-half interest in the home in which the partners lived during the cohabitation, but which was titled solely in the man's name).
128. See Wilbur v. DeLapp, 850 P.2d 1151, 1153 (Or. Ct. App. 1993) ("[We] may distribute property owned by the parties in a non-marital domestic relationship. The primary consideration in distributing such property is the intent of the parties. However, . . . in distributing the property of a domestic relationship, we are not precluded from exercising our equitable powers to reach a fair result based on the circumstances of each case." (citations omitted)); Shuraleff v. Donnelly, 817 P.2d 764, 768-69 (Or. Ct. App. 1991) (involving a fourteen-year cohabitation).
129. See, e.g., Kozlowski v. Kozlowski, 403 A.2d 902, 906 (N.J. 1979). But see Watts v. Watts, 448 N.W.2d 292, 296-97 (Wis. Ct. App. 1989); Ira Mark Ellman, The Theory of Alimony, 77 CAL. L. REV. 1, 21-23 (1989).
130. Marvin contemplates agreements implied by the parties' domestic behavior, and some California courts have been willing to infer agreements from the parties' domestic behavior. See, e.g., Byrne v. Laura, 60 Cal. Rptr. 3d 908, 914 (Ct. App. 1997); see also Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind. Ct. App. 1980) ("Recovery for parties seeking relief would be based only upon legally viable contractual and/or equitable grounds which the parties could establish according to their own particular circumstances."), quoted with approval in Bright v. Kuehl, 650 N.E.2d 311, 315 (Ind. Ct. App. 1995); Goode v. Goode, 396 S.E.2d 430, 435-38 (W. Va. 1990) (allowing recovery based on express or implied contract); Watts v. Watts, 405 N.W.2d 303, 311-12 (Wis. 1987).
131. Consider, for example, how the facts of In re Marriage of Gary, 109 Cal. Rptr. 862, 863 (Ct. App. 1973), would have been treated by the Marvin court under its expansive contract rubric. The complementary behavior of the parties in having and raising four children provided ample basis for an implied "share and share alike" contract. Id.
132. ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.01. The
133. Chapter 6 is limited to the following question: what are the economic rights and responsibilities of the parties to each other at the termination of their nonmarital cohabitation? The Principles deal only with the obligations of the parties to each other and to their children at family dissolution. They do not create any rights against the government or third parties. Thus, Chapter 6 should not be understood to revive the doctrine of common-law marriage.
134. Chapter 4 regulates property distribution, and Chapter 5 recasts spousal support as "compensatory payments." See PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS chs. 4, 5 (Proposed Final Draft 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)].
135. Chapter 4 regulates property distribution, and Chapter 5 recasts spousal support as "compensatory payments." See PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS chs. 4, 5 (Proposed Final Draft 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)].
136. ALI PRINCIPLES (Tentative Draft 2000), supra note 24, ch. 6.
137. Chapter 7 of the Principles allows them to do so, within the formal and substantive limitations set out by. that chapter for contracts between marital and nonmarital partners.
138. See ALI PRINCIPLES (Tentative Draft 2000), supra note 24, §§ 6.02 cmts., 6.03 cmts.
139. In the debate that preceded the ALI membership's adoption of Chapter 6, the crux of the opposition position seemed to be that the failure of cohabitants to marry should be interpreted to signify an agreement of the parties that they would have no obligations to each other should their relationship end. Thus, the adoption of Chapter 6 would frustrate the intentions of both parties to a cohabiting relationship. The ALI position on the intentions of the parties with respect to the possible demise of their relationship is that nonmarital couples who do not make explicit contracts about the subject are most likely to either have no intentions at all or have no common intentions. It is of course possible that one of the parties may avoid marriage with the hope of avoiding obligation to the other, but the ALI concluded that the law has no interest in vindicating the intention of one party only. Under the ALI Principles, that party must secure the consent of the other to avoid any duties that would otherwise flow from the relationship.
140. JAN TROST, UNMARRIED COHABITATION 185-87 (1979).
141. For more recent discussion of this point, see Kathleen Kiernan, The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe, 15 INT'L J.L. POL'Y & FAM. 1, 3 (2001), and sources cited therein.
142. In the United States, this is expressed in the popular myth that, after seven years of cohabitation, cohabitants are common-law spouses.
143. A similar approach has been entertained by the Reporter of the Uniform Probate Code. See Lawrence W. Waggoner, Marital Property Rights in Transition, 59 Mo. L. REV. 21, 36-41 (1994) (proposing an intestacy statute for unmarried couples who lived in a "marriage-like relationship" prior to the death of one of them).
144. ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03(1).
145. Id. § 6.03 (3)-(4).
146. Id. § 6.03(6).
147. See infra text accompanying notes 137-56.
148. ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03(3)-(4).
149. See id. § 6.03(4).
150. See id. § 6.03 illus. (i).
151. See id. § 6.03(7).
152. Id. § 6.03(6).
153. See id. § 6.03.
154. See id. § 6.03 (7) (a)-(m).
155. Chapter 5 of the ALI Principles rationalizes and reconceptualizes spousal support as "compensatory payments." ALI PRINCIPLES (Proposed Final Draft 1997), supra note 113, § 5.01 cmt. a.
156. ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.01(2).
157. ALI PRINCIPLES (Proposed Final Draft 1997), supra note 113, § 5.05 cmt. c.
158. Id.
159. See ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03, Reporter's Note cmt. c.
160. See supra note 105.
161. See supra note 107.
162. Indeed, shortly before Chapter 6 of the Principles was presented to the ALI membership in May 2000, the government of New Zealand introduced legislation closely resembling Chapter 6. See Vernon Small, Married and Gay Equal in New Law, N.Z. HERALD, Apr. 3, 2000, at 1. For current Canadian, Australian, and New Zealand legislation, see text immediately infra. Early Canadian and Australian legislation is discussed by Carol Bruch, Nonmarital Cohabitation in the Common Law Countries: A Study in Judicial-Legislative Interaction, 29 AM. J. COMP. L. 217, 234-35 (1981). For a survey of Latin-American, European, and Israeli treatment of stable, nonmarital cohabitation in the early 1980s, see Blumberg, supra note 2, at 1170-76. The first issue of 15 INT'L J.L. POL'Y & FAM. (2001) is devoted entirely to articles on the demography and legislative regulation of cohabitation in Europe.
163. Indeed, shortly before Chapter 6 of the Principles was presented to the ALI membership in May 2000, the government of New Zealand introduced legislation closely resembling Chapter 6. See Vernon Small, Married and Gay Equal in New Law, N.Z. HERALD, Apr. 3, 2000, at 1. For current Canadian, Australian, and New Zealand legislation, see text immediately infra. Early Canadian and Australian legislation is discussed by Carol Bruch, Nonmarital Cohabitation in the Common Law Countries: A Study in Judicial-Legislative Interaction, 29 AM. J. COMP. L. 217, 234-35 (1981). For a survey of Latin-American, European, and Israeli treatment of stable, nonmarital cohabitation in the early 1980s, see Blumberg, supra note 2, at 1170-76. The first issue of 15 INT'L J.L. POL'Y & FAM. (2001) is devoted entirely to articles on the demography and legislative regulation of cohabitation in Europe.
164. Indeed, shortly before Chapter 6 of the Principles was presented to the ALI membership in May 2000, the government of New Zealand introduced legislation closely resembling Chapter 6. See Vernon Small, Married and Gay Equal in New Law, N.Z. HERALD, Apr. 3, 2000, at 1. For current Canadian, Australian, and New Zealand legislation, see text immediately infra. Early Canadian and Australian legislation is discussed by Carol Bruch, Nonmarital Cohabitation in the Common Law Countries: A Study in Judicial-Legislative Interaction, 29 AM. J. COMP. L. 217, 234-35 (1981). For a survey of Latin-American, European, and Israeli treatment of stable, nonmarital cohabitation in the early 1980s, see Blumberg, supra note 2, at 1170-76. The first issue of 15 INT'L J.L. POL'Y & FAM. (2001) is devoted entirely to articles on the demography and legislative regulation of cohabitation in Europe.
165. Ontario Family Law Reform Act of 1986, R.S.O., ch. F-3, §§ 29-30 (1990) (Can.).
166. Id. An earlier version of the Act required, under subsection (a), continuous cohabitation for not less than five years. Ontario Family Law Reform Act of 1979, ch. 2, § 14(b), 1978 S.O. 5 (Can.).
167. [1999] D.L.R. 577.
168. Id. at 578. The Canadian Charter is equivalent to the United States Constitution.
169. Id. at 581.
170. Family Relations Act of British Columbia, R.S.B.C., ch. 128, § 1 (1996) (amended October 1, 1998) (Can.).
171. Property (Relationships) Act, 1984, N.S.W. ACTS § 4(1) (Austl.) (amended to include same-sex relationships by the Property (Relationships) Legislation Amendment Act, 1999, N.S.W ACTS § 3 (Austl.)).
172. See id. § 4(2).
173. See RECOGNISING SAME-SEX RELATIONSHIPS, supra note 74, at 5.
174. Id.
175. See RECOGNISING SAME-SEX RELATIONSHIPS, supra note 74, at 8.
176. Property (Relationships) Amendment Act, 2001, § 2D (N.Z.), available at http://www.brookers.co.nz/property_act/default.htm (last visited Aug. 30, 2001).
177. Id. § 3(d).
178. Id. §§ 11, 32.
179. Id. §§ 21, 21J.
180. See New Property Law One Step Forward, N.Z. HERALD, Apr. 4, 2000, at A10.
181. See the English Matrimonial Causes Act, 1973, § 24 (Eng.), which allows the divorce court to make "an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or postnuptial settlement . . . notwithstanding that there are no children of the family." Id. For discussion of this provision, see 13 HALSBURY'S LAWS OF ENGLAND ¶ 1136 (4th ed. 1975). Similarly, British Columbia allows "judicial reapportionment on [the] basis of fairness" when "the provisions for division of property between spouses under their . . . marriage [premarital or marital] agreement . . . would be unfair" having regard to a wide variety of equitable factors. Family Relations Act of British Columbia, 1996, R.S.B.C., ch. 128, § 65 (Can). The English and the British Columbia provisions, by implication, limit enforceability to the property terms of a premarital or marital agreement. Terms relating to spousal or child support are unmentioned and, presumably, unenforceable. Compare the Uniform Premarital Agreement Act (UPAA), which enforces waivers of spousal support, as well as property rights, without any consideration of "fairness" at dissolution. UNIF. PREMARITAL AGREEMENT ACT § 6, 9B U.L.A. 369 (1987). For discussion of state law adoption and modification of these UPAA provisions, see ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 7.05, reporter's n. cmt. b. For criticism of the UPAA, see id. and text immediately infra.
182. Section 6 of the UPAA provides: (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) that party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party: (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. UNIF. PREMARITAL AGREEMENT ACT § 6, 9B U.L.A. 369, 376. By contrast, a business contract is unenforceable if it is merely unconscionable. To further shore up section 6, subsection (c) provides that "[a]n issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." Id. Of course, the UPAA represents the most extreme position with respect to the enforceability of premarital agreements. However, it reflects a trend in American law and has itself had considerable influence in the recent development of state case law. For a broad survey, see ALI PRINCIPLES (Tentative Draft 2000), supra note 24, ch. 7.
183. The usual American account is that we essentially do not have a welfare state and that everyone is required to earn his way by the "sweat of his brow." Any back-up provision, meager at that, is made only for children, the aged, and the disabled. However, we do have a welfare state of significant proportions, albeit one that is largely concealed and poorly cobbled together. It just does not look like the welfare states of our neighbors.
184. The particular nature of the American welfare state may serve various social policies. Most obviously, it enforces a norm of full-time market employment for at least one family member, in order to secure vital welfare benefits otherwise generally unavailable to an individual or family other than through public assistance.
185. A comparative approach to the welfare function of divorce law suggests an inverse relationship between the extent of public provision of social security and the development of an (at least apparently) robust and elaborate law of private family rights and obligations. One measure of the extent to which a country makes public provision for the consequences of family breakdown is the degree to which it manages, by public provision, to reduce the number of children in one-parent families who would otherwise live in poverty: In first-world (OECD) countries, children in one-parent families are similarly at high risk of poverty before government transfers are taken into account. OECD standards, used for international comparison of developed countries, show a U.S. poverty rate of sixty percent for one-parent families, as compared to eleven percent for two-parent families. See Lee Rainwater & Timothy M. Smeeding, Doing Poorly: The Real Income of American Children in a Comparative Perspective 12 (Luxembourg Income Study Working Paper, No. 127, 1995). However, by government transfers, half of OECD countries manage to reduce by more than seventy-five percent the number of children in one-parent families who would otherwise be in poverty. Id. at fig. 6. The rest manage reductions between twenty-five and fifty percent, with the exception of Canada, Australia, and the United States. Id. The United States reduces poverty by public transfer by the very least, by about ten percent. Id. The United States has long had the least developed public welfare state and the most elaborate and extensive law of family obligations at divorce. Canada and Australia place second and third in both respects. In recent decades, Canada and Australia have adopted many aspects of American family law, particularly property division rules and uniform child support guidelines. Correspondingly, countries that are successful in avoiding poverty by public transfer appear to have less developed and elaborate private law applicable at family breakdown. This is not to suggest that private transfer rules are an effective substitute for public transfers. On the contrary, the data indicate otherwise. Nevertheless, in those countries that have reduced public welfare functions in order to revitalize their economies, the concurrent "privatization" of family support through the establishment of private support obligations may be read to express a public concern about adequate support and an intention to provide support by alternate, albeit private, means. To the extent that the government continues to act as a minimal provider of last resort, concern for the public fisc is also expressed in the articulation of family obligations. In countries that have reduced, or seek to reduce, their public welfare functions, this direct relationship between public welfare and private obligations is evident throughout the skein of family obligations, including property division, spousal support, and child support. For such countries, it is thus a short and inevitable step to expand the definition of "spouse" to include, first, opposite-sex couples who live in stable cohabitation and, next, same-sex couples who do likewise. In the United States, this account describes only our experience with child support. The only categorical program that contemplates income support for broken families is the child-focused Temporary Assistance for Needy Families (TANF) program, the successor to Aid to Families with Dependent Children (AFDC). See supra note 9. The program is universal in that it covers all children without regard to the marital status of their parents or the social relationship, if any, of their parents. Correspondingly, despite prior law to the contrary, the American law of parental child support obligations has developed into a universal system that makes no distinction between children born in- and out-of-wedlock. Even so, the public welfare concern most often expressed in federal AFDC and TANF legislation is to protect the fisc from avoidable public expenditure (see also the UPPA proviso for spousal support when a former spouse would otherwise go on public assistance, discussed infra in the text at note 162), rather than the public welfare concern in assuring that adequate resources are devoted to the next generation of citizens. The absence of the latter concern is also reflected in a history of public payments grossly insufficient to accomplish that goal.
186. Section 6 of the UPAA provides: (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. UNIF. PREMARITAL AGREEMENT ACT § 6(b), 9B U.L.A. 369, 376 (1987).
187. For American data, see supra notes 10-11. For European data, see Kiernan, supra note 119.
188. See text accompanying supra notes 137-57.
189. See text accompanying supra notes 5-9 and supra note 161.
190. New Zealand provides a good example. Until the early 1980s, New Zealand was a model welfare state, with a highly redistributive tax-and-benefits wealth transfer system. See Ian Shirley et al., Family Change and Family Policies: New Zealand, in FAMILY CHANGE AND FAMILY POLICIES IN GREAT BRITAIN, NEW ZEALAND, AND THE UNITED STATES 207, 212-14 (Sheila B. Kammerman & Alfred J. Kahn eds., 1997). Plagued by a declining economy, in 1984 New Zealand undertook a radical program of privatization and reduction of its tax-and-benefits wealth transfer system, often characterized as "Rogernomics" after the Labour minister, Roger Douglas, who initiated the program. Each successive amendment of the Marital Property Act has strengthened the role of property distribution and family support at dissolution of family relationships. See id. at 212-21. Similarly, "Thatcherism" in England was accompanied by the "privatization" of child and spousal support duties. See supra notes 16-17.
191. See text accompanying supra notes 137-63.
192. See text accompanying supra notes 5-9.
193. See text accompanying supra notes 6-8.
194. See text accompanying supra notes 89-102.
195. On the other hand, the Marvin rubric has not been accompanied by the development of a doctrine of "marriage by estoppel." Unsuccessful Marvin cases frequently reveal that the defendant filed joint (marital) tax returns with his cohabitant and represented her as his wife for purposes of health benefits (often for childbirth). Such facts have not been held to estop the defendant from denying an agreement to be treated as a married person. See cases collected in ALI PRINCIPLES (Tentative Draft 2000), supra note 24, § 6.03, Reporter's Note to comment b.
196. See sources cited supra note 33; see also Chambers, supra note 11, at 452-61 (Federal and state laws regarding marriage aim to "recognize affective or emotional bonds," aid in "creating an environment that is especially promising or appropriate for the raising of children," or demonstrate "assumptions (or prescriptive views) about the economic arrangements" between partners.); Donovan, supra note 85, at 652-55 (emphasizing the role of the public expectations that flow from legal recognition of relationships); Raymond C. O'Brien, Domestic Partnership: Recognition and Responsibility, 32 SAN DIEGO L. REV. 163, 163 (1995) ("To date, partnerships have conferred benefits only; the most logical progression is for partnerships to include responsibilities of support, commitment and obligation within the economic partnership construct of emerging family law.").