Equality and justice for lesbian and gay families and relationships

Rutgers Law Review

Volumn 61, Issue 3, 2009, Pages 529-565

  Polikoff, Nancy D ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 68249113985     PISSN: 00360465     EISSN: None     Source Type: Journal    
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References (173)

1. Braschi v. Stahl Assocs. Co., 543 N. E.2d 49, 50 (N. Y. 1989).
2. Id.
3. Id. at 51 (quoting Braschi v. Stahl Assocs. Co., 531 N. Y. S.2d 562, 563 (App. Div. 1988)).
4. Id. at 53.
5. See Thomas Stoddard, Why Gay People Should Seek the Right to Marry, OUT/LOOK, Fall 1989, at 9, reprinted in WILLIAM B. RUBENSTEIN, CARLOS A. BALL & JANE S. SCHACTER, CASES AND MATERIALS ON SEXUAL ORIENTATION AND THE LAW 678 (3d ed. 2008);
6. Paula Ettelbrick, Since When is Marriage a Path to Liberation?, OUT/LOOK, Fall 1989, at 14, reprinted in RUBENSTEIN ET AL., supra, at 683.
7. See Eisenstadt v. Baird, 405 U. S. 438, 453(1972).
8. See King v. Smith, 392 U. S. 309, 329-30(1968).
9. See, e.g., Gomez v. Perez, 409 U. S. 535, 538(1973);
10. Weber v. Aetna Cas. & Sur. Co., 406 U. S. 164, 169-70(1972).
11. See Roe v. Wade, 410 U. S. 113, 162-63(1973).
12. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 461(1981);
13. Frontiero v. Richardson, 411 U. S. 677, 686-87(1973);
14. Reed v. Reed, 404 U. S. 71, 76-77(1971).
15. See U. S. Dep't of Agric. v. Moreno, 413 U. S. 528, 534-35(1973).
16. In an important essay, historian John D'Emilio analyzes the economic conditions that during this same period of time dramatically reduced the importance of marriage. John D'Emilio, The Marriage Fight is Setting Us Back, GAY & LESBIAN REV., Nov. -Dec. 2006, at 13.
17. See NANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMILIES UNDER THE LAW 20-21(2008).
18. Id. at 21; see National Plan of Action, in THE SPIRIT OF HOUSTON: THE FIRST NATIONAL WOMEN'S CONFERENCE, AN OFFICIAL REPORT TO THE PRESIDENT, THE CONGRESS AND THE PEOPLE OF THE UNITED STATES 13, 90, 93-95(1978);
19. SISTERS OF '77 (Media Projects, Inc. 2005).
20. See Thomas J. Burrows, Family Values: From the White House Conference on Families to the Family Protection Act, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS 336, 336, 340 (John D'Emilio, William B. Turner & Urvashi Vaid eds., 2000). This diverse set of groups included, among others, the American Home Economic Association, Planned Parenthood, National Association of Social Workers, National Organization for Women, Urban League, American Red Cross, and the National Council of State Committees for Children and Youth. Id. at 340.
21. Id. at 347.
22. See POLIKOFF, supra note 13, at 40-41.
23. Id. at 41;
24. see also Joan Gubbins et al., To Establish Justice: Minority Report, in THE SPIRIT OF HOUSTON: THE FIRST NATIONAL WOMEN'S CONFERENCE, supra note 14, 265, 265-72.
25. See POLIKOFF, supra note 13, at 40-43.
26. Burrows, supra note 15, at 349.
27. See POLIKOFF, supra note 13, at 49. The first policy in the private sphere was enacted by the publication the Village Voice in 1982. Id. In 1985, Berkeley and West Hollywood became the first municipalities to enact domestic partner ordinances, with Santa Cruz following suit in 1986. Id. at 50.
28. Id. at 50-51 (quoting MADISON, WIS., EQUAL OPPORTUNITIES ORDINANCE § 39.03(2007)). For a detailed and historically important account of the Alternative Family Rights Task Force, including its efforts to obtain protections for the broadest possible definition of family, see Barbara J. Cox, Choosing One's Family: Can the Legal System Address the Breadth of Women's Choice of Intimate Relationship?, 8 ST. LOUIS U. PUB. L. REV. 299(1989).
29. LOS ANGELES CITY TASK FORCE ON FAMILY DIVERSITY, STRENGTHENING FAMILIES, A MODEL FOR COMMUNITY ACTION 21-22(1988).
30. Id. at 22.
31. Id. at 84-85.
32. Brief Amicus Curiae of Lambda Legal Defense and Education Fund in Support of Plaintiff-Appellant, Braschi v. Stahl Assocs. Co., 543 N. E.2d 49 (N. Y. 1989) (No. 02194-87).
33. Id. at 2, 6-16.
34. Id. at 20.
35. Brief Amicus Curiae of the Gay Men's Health Crisis, Inc. et al. in Support of Plaintiff-Appellant, Braschi, 543 N. E.2d 49 (No. 02194-87).
36. Brief of Community Action for Legal Services, Inc., Amicus Curiae at 15, Braschi, 543 N. E.2d 49 (No. 02194-87).
37. Brief Amici Curiae of Family Service America et al. at 1, Braschi, 543 N. E.2d 49 (No. 02194-87).
38. Id.
39. Id. at 23-24.
40. Id. at 34.
41. Brief Amicus Curiae of the Association of the Bar of the City of New York in Support of Plaintiff-Appellant, Braschi, 543 N. E.2d 49 (No. 02194-87).
42. Id. at 1-2.
43. Id. at 3.
44. Id.
45. Id. at 8 (quoting Group House of Port Wash. v. Bd. of Zoning & Appeals, 380 N. E.2d 207, 209 (N. Y. 1978)).
46. Braschi, 543 N. E.2d at 54-55.
47. Id.
48. Id.
49. See supra note 5.
50. Ettelbrick, supra note 5, at 684-87.
51. Stoddard, supra note 5, at 679-82.
52. For a draft copy of this unpublished document, see infra Appendix A.
53. Id.
54. Id.
55. Id.
56. Andrew Sullivan, Here Comes the Groom: A Conservative Case for Gay Marriage, NEW REPUBLIC, Aug. 28, 1989, at 20.
57. Id. at 22 ("A need to rebel has quietly ceded to a desire to belong.").
58. Id. at 20-22.
59. BRUCE BAWER, A PLACE AT THE TABLE: THE GAY INDIVIDUAL IN AMERICAN SOCIETY (1993).
60. Id.
61. ANDREW SULLIVAN, VIRTUALLY NORMAL: AN ARGUMENT ABOUT SEXUALITY 185(1995).
62. Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993).
63. See POLIKOFF, supra note 13, at 61 (describing the policy implemented by Fortune 500 Company Oracle).
64. See id. at 63.
65. Barbara Dafoe Whitehead, Dan Quayle Was Right, ATLANTIC MONTHLY, Apr. 1993, at 47.
66. See POLIKOFF, supra note 13, at 63-64.
67. Debra J. Saunders, Standing Firm and Whining, SAN FRANCISCO CHRONICLE, Sept. 2, 1994, at A25 (quoting Quayle as saying: "It doesn't help matters when prime time TV has Murphy Brown-a character who supposedly epitomizes today's intelligent, highly paid, professional woman-mocking the importance of fathers by bearing a child alone, and calling it just another 'lifestyle choice."').
68. See POLIKOFF, supra note 13, at 63-64, 66-67.
69. William Galston, Stable Families Fabric of Strong Society, WIS. ST. J., Apr. 25, 1993.
70. Charles Murray, The Coming White Underclass, WALL ST. J., Oct. 29, 1993, at A14.
71. Id.
72. See, e.g., DAVID BLANKENHORN, FATHERLESS AMERICA: CONFRONTING OUR MOST URGENT SOCIAL PROBLEM (1995);
73. DAVID POPENOE, LIFE WITHOUT FATHER: COMPELLING NEW EVIDENCE THAT FATHERHOOD AND MARRIAGE ARE INDISPENSIBLE FOR THE GOOD OF CHILDREN AND SOCIETY (1996).
74. Judith Stacey, Scents, Scholars and Stigma: The Revisionist Campaign for Family Values, 40 SOCIAL TEXT 51, 55(1994) [hereinafter Stacey, Scents, Scholars, and Stigma]; see also JUDITH STACEY, IN THE NAME OF THE FAMILY: RETHINKING FAMILY VALUES IN THE POSTMODERN AGE (1996);
75. Judith Stacey, The New Family Values Crusaders, NATION, July 25, 1994.
76. Stacey, Scents, Scholars, and Stigma, supra note 67, at 57.
77. Michael S. Wald, Adults' Sexual Orientation and State Determinations Regarding Placement of Children, 40 FAM. L. Q. 381(2006). Among other things, Professor Wald concludes that "there is no evidence that children in general do better with a father and mother than with two mothers or two fathers." Id. at 405.
78. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, tit. 1, § 103 (a), 110 Stat. 2105, 2113 (codified at 42 U. S. C. § 601(2006)).
79. Id. § 101 (1) - (2), 110 Stat. at 2110.
80. Id. § 101(10), 110 Stat. at 2112.
81. See, e.g., LINDA J. WAITE & MAGGIE GALLAGHER, THE CASE FOR MARRIAGE: WHY MARRIED PEOPLE ARE HAPPIER, HEALTHIER, AND BETTER OFF FINANCIALLY (2000). For a thorough critique of the research claims in this book, see BELLA DEPAULO, SINGLED OUT: HOW SINGLES ARE STEREOTYPED, STIGMATIZED, AND IGNORED, AND STILL LIVE HAPPILY EVER AFTER 48-61(2006).
82. WORKING TOWARDS INDEPENDENCE: SUMMARY OF THE BUSH PROPOSAL 3(2002), http://www.nls.gov/offices/ pih/programs/hcv/wtw/ta/sfSummaryofBushwelfareproposal.pdf.
83. See ACF Healthy Marriage Initiative, http://www.acf.hhs.gov/ healthymarriage/about/mission.html Background (last visited May 9, 2009). NOW Legal Defense and Education Fund (now Legal Momentum) was among feminist organizations opposing funding of marriage promotion efforts. See Press Release, Now Legal Defense and Education Fund, Why Now Legal Defense Opposes Federal Marriage Promotion in TANF Reauthorization, http://www.legalmomentum. org/assets/pdfs/marriagebackgrounder.pdf; Press Release, Now Legal Defense and Education Fund, Looking for Love in All the Wrong Places: The Case Against Government Marriage Promotion, http://www.legalmomentum.org/assets/pdfs/ lookingforlove.pdf.
84. For the most thorough analyses of "marriage promotion," see ALTERNATIVES TO MARRIAGE PROJECT, LET THEM EAT WEDDING RINGS (2d ed. 2007), http://www.unmarried.org/rings2.pdf, JEAN V. HARDISTY, POLITICAL RESEARCH Assocs., PUSHED TO THE ALTAR: THE RIGHT WING ROOTS OF MARRIAGE PROMOTION (2008), JEAN V. HARDISTY, POLITICAL RESEARCH ASSOCS., MARRIAGE AS A CURE FOR POVERTY? SOCIAL SCIENCE THROUGH A "FAMILY VALUES" LENS (2008), http://www.publiceye.org/jeans-report/marriage-promotion-part-2.pdf, and JEN HEITEL YAKUSH, SEXUALITY INFO. & EDUC. COUNCIL OF THE U. S., LEGALIZED DISCRIMINATION: THE RISE OF THE MARRIAGE- PROMOTION INDUSTRY AND HOW FEDERALLY FUNDED PROGRAMS DISCRIMINATE AGAINST LESBIAN, GAY, BISEXUAL, AND TRANSGENDER YOUTH AND FAMILIES (2007), http://www.siecus.org/-data/global/ images/Legalized-Discrimination.pdf.
85. Vivian Hamilton, Mistaking Marriage for Social Policy, 11 VA. J. SOC. POL'Y & L. 307, 368(2004). For additional analysis of faults in the arguments of the "marriage movement," see POLIKOFF, supra note 13, at 72-82.
86. *21-22 (Haw. Cir. Ct. Dec. 3, 1996).
87. Before the appeal of that decision was heard by the Hawaii Supreme Court, the people of Hawaii enacted a constitutional amendment in November 1998 allowing the state legislature to limit marriage to a man and a woman, see HAW. CONST. art. 1, § 23 ("The legislature shall have the power to reserve marriage to opposite-sex couples."), which it did. HAW. REV. STAT. § 572-1(2008). The state legislature did create a status called "reciprocal beneficiaries," open to any two people barred from marriage, and extending to those who register for the status a few of the legal consequences of marriage such as worker's compensation and the right to sue for wrongful death. See Hawaii Reciprocal Beneficiaries Act, 1997 Haw. Sess. Laws 383 (codified in part at HAW. REV. STAT. § 572C (2008)).
88. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419(1996) (codified at 1 U. S. C. § 7 and 28 U. S. C. § 1738C (2006)).
89. In 1999, the Vermont Supreme Court held that denying the rights and obligations of marriage to same-sex couples violated the state's constitution. Baker v. State, 744 A.2d 864, 912 (Vt. 1999).
90. It required equalization of the legal consequences of marriage but did not require that marriage be opened to same-sex couples. Id. at 886. In response, the legislature enacted the status of "civil unions" extending all the state-based consequences of marriage to same-sex couples who enter civil unions. VT. STAT. ANN. tit. 15, § 1201(2007). In April 2009, the Vermont legislature enacted legislation giving same-sex couples access to marriage, effective on September 1, 2009. S. 115, 2009 Leg., Reg. Sess. (Vt. 2009).
91. See generally Freedom to Marry, http://www.freedomtomarry.org (last visited Apr. 7, 2009).
92. See Goodridge v. Dep't of Pub. Health, 798 N. E.2d 941 (Mass. 2003).
93. See NATIONAVL GAY AND LESBIAN TASK FORCE, ANTI-GAY MARRIAGE MEASURES IN THE U. S. (2009), http://www.thetaskforce.org/downloads/ reports/issue-maps/GayMarriage-04-09.pdf.
94. See NATIONAL GAY AND LESBIAN TASK FORCE, RELATIONSHIP RECOGNITION FOR SAME-SEX COUPLES IN THE U. S. (2009), http://www.thetaskforce.org/downloads/reports/issue-rnaps/relationship- recognition-05-09-color.pdf. In those states in which the status has expanded over several years to include more legal consequences or a different name, the date in parentheses is the most recent year the consequences of the status were expanded or the name of the status available to same-sex couples was changed. Marriage: Massachusetts (2004), Connecticut (2008), Iowa (2009), Maine (2009), Vermont (2009), New Hampshire (governor's signature expected 2009);
95. domestic partnerships: California (2005), Oregon (2007), Washington (2009);
96. civil unions: New Jersey (2006). Both same-sex and different-sex couples can register as domestic partners in the District of Columbia. D. C. CODE § 32-701(3) (2009).
97. See Dan Aiello, No on Prop 8 Official Grilled over Campaign, BAY AREA REP., Nov. 13, 2008, http://ebar.com/news/article.php?sec=new & sarticle=3475.
98. See GLAD, WHY MARRIAGE MATTERS, https://www.massequality.org/ourwork/marriage/ whymarriagematters.pdf.
99. For additional critique of the use of these arguments by the marriage equality movement, see POLIKOFF, supra note 13, 98-103.
100. This is most problematic when advocates for same-sex marriage argue that it is necessary for the well-being of children. See Nancy D. Polikoff, For the Sake of All Children: Opponents and Supporters of Same-Sex Marriage Both Miss the Mark, 8 N. Y. CITY L. REV. 573, 585-86(2005).
101. See Nat'l Pride at Work, Inc. v. Governor of Mich., 748 N. W.2d 524 (Mich. 2008);
102. POLIKOFF, supra note 13, at 95-96.
103. See Judy Greenwald, Advent of Gay Marriage Alters Massachusetts Partner Benefits, BUS. INS., Jan. 17, 2005, at 4 (including The New York Times Co., Armonk, IBM Corp., Raytheon Corp., National Fire Protection Assn., Boston Medical Center, and Emerson College);
104. GLAD, DOMESTIC PARTNERSHIP BENEFITS STILL MATTER IN THE AGE OF EQUAL MARRIAGE: MARRIAGE DOES NOT MEAN INSTANT EQUALITY FOR LESBIAN AND GAY EMPLOYEES (2008), http://www.glad.org/uploads/docs/publications/ dpbenefits-post-goodridge.pdf (urging Boston companies not to rescind domestic partner benefits).
105. T. F. v. B. L., 813 N. E.2d 1244, 1251-52 (Mass. 2004).
106. Charron v. Amaral, 889 N. E.2d 946, 948 (Mass. 2008).
107. See POLIKOFF, supra note 13, at 25-26.
108. Domestic Partner Rights and Responsibilities Act, ch. 421, 2003 Cal. Stat. 2586 (codified as amended at CAL. FAM. CODE §§ 297-299.3 (West 2008)).
109. See Respondents' Supplemental Brief, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), http://www.nclrights.org/site/DocServer/ Rymer-Supplemental-Brief081707.pdf?docID=1861 [hereinafter Supplemental Brief].
110. Id. at 18.
111. Id. at 32.
112. Id. at 32-40.
113. Id. at 36.
114. Id. at 22.
115. Respondents' Consolidated Supplemental Reply Brief at 23, In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (No. S147999), http://www.nclrights. org/site/DocServer/2007.08.31. Rymer. Reply-to-Supps.pdf?docID=2202 [hereinafter Consolidated Supplemental Reply Brief].
116. Supplemental Brief, supra note 95, at 24 (quoting Marvin v. Marvin, 557 P.2d 106, 123 (Cal. 1976)).
117. Consolidated Supplemental Reply Brief, supra note 101, at 14 (quoting De Burgh v. De Burgh, 250 P.2d 598, 601 (Cal. 1952)).
118. Supplemental Brief, supra note 95, at 32.
119. Consolidated Supplemental Reply Brief, supra note 101, at 23.
120. Id. at 10.
121. Supplemental Brief, supra note 95, at 32-33.
122. Consolidated Supplemental Reply Brief, supra note 101, at 14 (citation omitted).
123. Ettelbrick, supra note 5, at 684-85.
124. See GLAD, "DOMA" MEANS FEDERAL DISCRIMINATION AGAINST MARRIED SAME- SEX COUPLES 4(2009), http://www.glad.org/uploads/docs/ publications/domaoverview.pdf [hereinafter GLAD, "DOMA" MEANS FEDERAL DISCRIMINATION]. For information on the plaintiffs, see GLAD, GLAD Challenges DOMA Section 3, Plaintiffs, http://www.glad.org/doma/ plaintiffs/(last visited Apr. 21, 2009).
125. GLAD, "DOMA" MEANS FEDERAL DISCRIMINATION, supra note 110, at 4.
126. ROCHELLE STANFIELD & CORINNA NICOLAOU, URBAN INST., SOCIAL SECURITY: OUT OF STEP WITH THE MODERN FAMILY 10-11(2000), http://www.urban.org/UploadedPDF/out-of-step.pdf.
127. Dorothy A. Brown, Social Security and Marriage in Black and White, 65 OHIO ST. L. J. 111, 112-13(2004).
128. STANFIELD & NICOLAOU, supra note 112, at 6. Although I use gendered terms here, the law today is gender neutral. When the wife is the high income earner, her husband has the same opportunity to receive a benefit amounting to 50% of that paid the wife. I use the gendered terminology because it is accurate that for those couples who do have one high income earner, the husband is much more likely than the wife to be that high income earner.
129. Id.
130. See SEAN CAHILL & SARA TOBIAS, POLICY ISSUES AFFECTING LESBIAN, GAY, BISEXUAL, AND TRANSGENDER FAMILIES 34-35(2006) (referencing TERENCE DOUGHERTY, NAT'L GAY & LESBIAN TASK FORCE, ECONOMIC BENEFITS OF MARRIAGE UNDER FEDERAL AND MASSACHUSETTS LAW 7(2004), http://www.thetaskforce.org/downloads/reports/reports/EconomicBenefitsMA.pdf).
131. STANFIELD & NICOLAOU, supra note 112, at 6.
132. See id.; Edward D. Berkowitz, Family Benefits in Social Security: A Historical Commentary, in SOCIAL SECURITY AND THE FAMILY: ADDRESSING UNMET NEEDS IN AN UNDERFUNDED SYSTEM 19, 28-36 (Melissa M. Favreault, Frank J. Sammartino & C. Eugene Steuerle eds., 2002).
133. See STANFIELD & NICOLAOU, supra note 112, at 4;
134. Berkowitz, supra note 118, at 28-36.
135. There are other examples. Other plaintiffs in GLAD's anti-DOMA lawsuit have paid many thousands of dollars a year in added federal income tax because their marriage is not recognized under federal law. Press Release, GLAD, GLAD Files Lawsuit Challenging Denial of Critical Federal Benefits to Married Same-Sex Couples (Mar. 3, 2009), http://www.glad.org/uploads/docs/press- releases/2009-03-03-DOMA.pdf. But these are also the couples that have one primary wage earner. Those couples married in Massachusetts who have two relatively equal income earners are better off because they file federal income tax as single rather than married persons. JANE G. GRAVELLE, CONG. RESEARCH SERV., FEDERAL INCOME TAX TREATMENT OF THE FAMILY 2(2006), http://assets.opencrs.com/rpts/RL33755-20061219.pdf. The "marriage bonus" that accrues to married couples with one primary wage earner cost the government $49 billion in 2004. Dennis J. Ventry, Opinion: Presidential Candidates Offer More Tax Cuts for 'Traditional" Families, Alternatives to Marriage Project, http://www.unmarried.org/opinion- presidential-candidates-offer-more-tax-cuts-fortraditional-families.html (last visited Apr. 12, 2009). That same year, about eighteen million married couples with equal or close to equal earnings paid $19 billion in marriage penalties. Id. As a result of DOMA, equal earning same-sex couples married in Massachusetts are spared the marriage penalty. Those couples are not plaintiffs in the anti-DOMA lawsuit. Instead of arguing that same-sex couples should get the marriage bonus, gay rights groups would serve the needs of their constituency better by arguing for changes to the laws of family taxation. For a review of literature concerning taxes and the family, see Alternatives to Marriage Project, More Resources on Taxation, http://www.unmarried.org/more- resources-on-taxation.html (last visited Apr. 12, 2009).
136. Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families & Relationships 1 (July 26, 2006), http://www.beyondmarriage.org/ BeyondMarriage.pdf thereinafter Beyond Same-Sex Marriage].
137. See id.; Ettelbrick, supra note 5.
138. Beyond Same-Sex Marriage, supra note 121, at 1.
139. Id. at 1-2.
140. Id. at 2.
141. Id. at 3.
142. Id. at 4.
143. Id. at 4-5.
144. Id. at 5.
145. Id. at 7;
146. see also id. at 5.
147. Brief Amicus Curiae of Lambda Legal Defense and Education Fund, Inc. in Support of Neither Party and in Support of Reversal, Irizarry v. Bd. of Educ., 251 F.3d 604 (7th Cir. 2001) (No. 00-3216).
148. Irizarry, 251 F.3d at 606.
149. Id.
150. Id. at 609.
151. Id. at 607-08 ("[T]he evidence that on average married couples live longer, are healthier, earn more, have lower rates of substance abuse and mental illness, are less likely to commit suicide, and report higher levels of happiness-that marriage civilizes young males, confers economies of scale and of joint consumption, minimizes sexually transmitted disease, and provides a stable and nourishing framework for child rearing-refutes any claim that policies designed to promote marriage are irrational." (citations omitted)).
152. Complaint at 1-3, DeWolf v. Countrywide Financial Corp., (S. D. N. Y. filed May 24, 2007), http://data.lambdalegal.org/pdf/legal/dewolf/dewolf-c- 05242007.pdf.
153. Press Release, Lambda Legal, Lambda Legal to File Lawsuit on Behalf of Lesbian Homeowners in Federal Court Against Self-Described 'America's #1 Home Loan Lender' (May 24, 2007), http://www.lambdalegal.org/news/pr/lambda-legal-to- filelawsuit.html [hereinafter Lambda Legal Press Release]. The press release included the following: '"Everyone from kids to creditors knows what it means when two people say they are married,' said David S. Buckel, Marriage Project Director for Lambda Legal and attorney on the case. 'If these two women had been able to marry in New York, this never would have happened."' Id.
154. See Langan v. St. Vincent's Hosp., 802 N. Y. S.2d 476, 479-80 (App. Div. 2005);
155. Raum v. Rest. Assocs., 675 N. Y. S.2d 343, 370-71 (App. Div. 1998).
156. For specific countries, see POLIKOFF, supra note 13, at 110-20.
157. See id. at 193-96.
158. Edward Stein, Marriage or Liberation?: Reflections on Two Strategies in the Struggle for Lesbian and Gay Rights and Relationship Recognition, 61 RUTGERS L. REV. 567, 574(2009) ("In retrospect, [Stoddard and Ettelbrick's] two goals, although different, can be achieved at the same time....").
159. See supra text accompanying notes 26-39.
160. In calling for just treatment of surviving partners of those who died on September 11, 2001, Lambda Legal's Executive Director said, "Because they could not marry, surviving lesbian and gay partners of this tragedy are suffering not only the additional psychological trauma of having their relationships ignored, but may also suffer the consequences of not being equally supported in their time of need." See Civil Rights Groups Urge Fair Treatment for Surviving Lesbian and Gay Partners of September 11th Victims, http://www.lambdalegal.org/news/pr/civil-rights-groups-urgefair.html (last visited May 16, 2009).
161. H. B. 09-1260, 67th Gen. Assem., Reg. Sess. (Colo. 2009) (amending Title 15 of Colorado Revised Statutes).
162. Id. § 15-22-106.
163. In Beyond Straight and Gay Marriage, I advocate a similar status I call "designated family relationship." POLIKOFF, supra note 13, at 133-35, 187-88. I limit the legal consequences of the status to those matters that concern effectuation of individual autonomy, such as inheritance without a will and ability to make medical and burial decisions. The Colorado law goes beyond that and allows designation of such consequences as the ability to recover for wrongful death. § 15-22-105(3) (k). I do not include such a consequence because I would allow anyone partially or totally dependent on the decedent to sue for wrongful death-and would not extend that right to anyone lacking financial dependency or interdependency-regardless of formalized legal status.
164. The National Gay and Lesbian Task Force headlined on its website April 2009 votes on marriage equality in Vermont, New Hampshire, Maine, and the District of Columbia, and a vote on expanded domestic partnership rights in Washington. It did not mention the Colorado law. National Gay and Lesbian Task Force, http://www.thetaskforce.org/press/latest (last visited May 3, 2009). The marriage votes were covered in national newspapers, but only Colorado newspapers covered that state's law. Colorado's gay rights group, Equal Rights Colorado, announced the law on its website, but described it dispassionately, thus missing the opportunity to hail it as an innovative approach that should guide reform in other states. Equal Rights Colorado
165. http://www.kintera.org/site/c.qkI0KeMWItF/b.3809035/k.89E5/ERC-Home-Page . htm (last visited May 3, 2009).
166. Mark Strasser, A Little Older, a Little Wiser, and Still Committed, 61 RUTGERS L. REV. 507, 517-19(2009).
167. Jenni Millbank, The Recognition of Lesbian and Gay Families in Australian Law - Part 1: Couples, 34 FED. L. REV. 1, 30(2006). For an overview of additional recent law reforms that give de facto same-sex couples the same access to federal family courts as de facto different-sex couples, see Gay and Lesbian Rights Lobby, Relationship Breakdown, http://glrl.org.au/index.php/Rights/Relationships/Relationship-Breakdown.
168. AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS & RECOMMENDATIONS § 6.03(1) (2002).
169. See Connell v. Francisco, 898 P.2d 831 (Wash. 1995);
170. Gormley v. Robertson, 83 P.3d 1042 (Wash. Ct. App. 2004).
171. For a fuller discussion of how the law should deal with the breakdown of couple relationships, see POLIKOFF, supra note 13, at 174-82.
172. I develop this methodology at length in my book Beyond (Straight and Gay) Marriage. See POLIKOFF, supra note 13, at 123-45. I then apply it to numerous areas of law that have figured prominently in same-sex marriage advocacy, including employee benefits, surrogate medical decision making and hospital visitation, family and medical leave, the consequences of relationship breakdown, inheritance and the tax consequences of death, wrongful death recovery, workers' compensation survivors benefits, and Social Security. Id.
173. Beyond Same-Sex Marriage, supra note 121, at 2.