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Read Katherine Franke’s discussion on alternatives to marriage in the New York Times’ Room for Debate on “Family Ties, Without Tying the Knot”:

This week, New Jersey becomes the latest state to take up a same-sex marriage bill. But the Pew Research Center tells us that fewer Americans are marrying, suggesting that younger people are looking for other ways to define “family.”

Why are lawmakers so hung up on marriage? If fewer Americans are choosing to marry, what are the legal implications for relationships that are based on something other than marriage or parenting?

Syracuse University’s Kevin Noble Maillard helped organize this discussion.

Stop Sanctifying Marriage

Katherine Franke

Katherine Franke is the Isidor and Seville Sulzbacher Professor of Law and Director of the Center for Gender & Sexuality Law at Columbia Law School. She writes regularly for the Gender & Sexuality Law Blog, and received a Guggenheim Fellowship for the 2011-2012 academic year to write a book comparing the prominence of the right to marry in today’s gay rights movement with the role of marriage rights in the emancipation of African-Americans in the post-Civil War era in the U.S.

What I found most interesting about the federal appellate court’s ruling that Proposition 8 violated the constitutional rights of same-sex couples in California is the degree to which the court outright rejected the approach taken at the trial by Ted Olson and David Boies, the so-called Dream Team: Denying access to marriage for same-sex couples, they argued, is a constitutional injury because of the fundamental-ness and sacredness of marriage.

This argument — putting marriage on a pedestal and then saying that gay people suffer a constitutional injury because it is out of reach to them — focused primarily on the plaintiffs’ desire for respectability, their longing for the sacred blessing and societal recognition that marriage confers, on the fact that being married would be better for raising children, and finally on the disgrace of exile from the sacred domain of marriage.

Judge Stephen Reinhardt chose a different argument. He found that the wrong of Proposition 8 lay in the fact that it withdrew from same-sex couples a right that California had already granted them. This creates a different constitutional injury than refusing to grant the right in the first place. The problem under this framing is “the targeted exclusion of a group of citizens from a right or benefit that they had enjoyed on equal terms with all other citizens.”

If we could move away from portraying civil unions and other nonmarital family forms as a consolation prize, progress could be made.

The wisdom of this approach — focusing on the state giving and then taking away the right to marry — is that the constitutional problem doesn’t hinge on the sanctity or fundamental-ness of the right withdrawn. Reinhardt is clear about this: “The constitutional injury … has little to do with the substance of the right or benefit from which a group is excluded, and much to do with the act of exclusion itself.” In this respect, marriage is akin to any other state licensing regime: you may not have a constitutional right to the license in the first place (such as a fishing or boating license), but once you start issuing the licenses you can’t then target a particular group, like Catholics, Romanians or gay people, and take away their right to the license. With this approach the court can remain agnostic on the question of marriage and on the question of whether the state should be in the marriage business at all.

Judge Reinhardt’s opinion avoids the kind of sermonizing about the sanctity of the marital relation that characterized Olson and Boies’ arguments, and marked a win for those of us who are sick and tired of courts (and some advocates of same-sex marriage rights) portraying civil unions and other nonmarital family forms as a kind of consolation prize, or worse.

4 comments

  1. Check out Katherine Franke's piece on Family Ties w/out Tying the Knot – NYT Room for Debate: Stop Sanctifying Marriage http://t.co/yf5qZGpt

  2. Check out Katherine Franke's piece on Family Ties w/out Tying the Knot – NYT Room for Debate: Stop Sanctifying Marriage http://t.co/yf5qZGpt

  3. Check out Katherine Franke's piece on Family Ties w/out Tying the Knot – NYT Room for Debate: Stop Sanctifying Marriage http://t.co/yf5qZGpt

  4. Check out Katherine Franke's piece on Family Ties w/out Tying the Knot – NYT Room for Debate: Stop Sanctifying Marriage http://t.co/yf5qZGpt

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