Civil — as opposed to religious — marriage brings with it an extensive set of legal privileges and obligations. Once two people fill out the required paperwork and speak the required formulation, they are legally married and will remain so regardless of how they structure their relationship, until one of them dies or they go through the defined procedure to dissolve their marriage. During the marriage, without any additional legal action, community property will be accrued; one spouse will be able to make medical decisions if the other is incapacitated; each spouse can be held liable for the other’s debts; and if one spouse dies without a will, the other inherits through intestate succession.
Society privileges marriage, providing literally hundreds of benefits and obligations to those who enter into that state, because we perceive that marital relationships benefit the larger community. Marriage is seen to stabilize and support relationships, encouraging and enabling the privatization of care and the division of labor within households.
To the extent that individuals become responsible for each other, there is less that the community must do to care for them. Spouses sacrifice their own self-interest for the greater good of the union, knowing that if the marriage breaks up, they will be entitled to some recompense. (Many would assert that no-fault divorce undermines this goal and thereby threatens marriage by removing disincentives for a spouse to walk away.)
For all of the momentous responsibilities that come with marriage, the barrier to entry is fairly low. The minimum age in most states is 18 or even lower with parental or judicial consent; there are prohibitions against consanguinity (that vary from state to state); and there is a maximum of one spouse at a time. And in most states, of course, the spouses must be of opposite sex.
As long as these criteria are met at the beginning of the marriage, how the parties structure their relationship afterwards generally has no effect on their status.1 It matters not that they live on opposite coasts, have separate bank accounts, choose not to have children and carry on multiple affairs with other people. The actual substance of the marital relationship — except in extreme circumstances such as domestic violence — is shielded from regulation by the well-established doctrine of marital privacy.
At the same time, 10 states (including Washington) and the District of Columbia have recognized civil unions or domestic partnerships — institutions that look remarkably like marriage but for the fact that same-sex couples can take advantage of their protections while most heterosexual couples cannot.2 Washington has been moving incrementally toward extending the full range of state-created3 marital benefits to domestic partners, starting in 2007 with hospital visitation, the right to make medical decisions for an incapacitated partner, the right to make funeral arrangements and intestate succession. Last year, the Legislature added community property rights (also enabling one partner to sue or be sued on behalf of the community), testimonial privilege, certain veterans’ benefits and the application of dissolution proceedings to the termination of a domestic partnership.
The widening legal recognition of civil unions and domestic partnerships reflects increasing public approval of same-sex relationships. While polls consistently show lower support for same-sex marriage than for extension of legal privileges via alternative forms such as domestic partnership, approval rates for both marriage and its alternatives have risen steadily over the last decade. Support for civil unions/domestic partnerships routinely exceeds 50 percent.4 Additionally, a closer look at the polling data shows that approval of same-sex relationships correlates inversely with age: nearly half of adults under age 30 support same-sex marriage, while more than two-thirds of those over 65 oppose it.5
For the moment, it appears we are heading toward a two-tiered system in which some legally recognized relationships (marriages) have a different and higher status than others (domestic partnerships) and in which some people (same-sex couples) are allowed to enter only into the lower-status relationship. As legal differences between civil unions and domestic partnerships on the one hand and marriage on the other dwindle, however, the rationale for a two-tiered system will become less and less apparent.
One rationale for prohibiting same-sex marriage — that its mere existence threatens the institution of marriage itself — seems ultimately self-defeating. As King County Superior Court Judge William Downing eloquently put it in his opinion in Andersen v. Sims:
If there is indeed any outside threat to the institution of marriage, it could well lie in legislative tinkering with the creation of alternative species of quasi-marriage. With the creation of “civil unions”, “domestic partnerships” or other variations on the theme including, worst of all, something like a “five year plan with opt-out”, there could be a real danger. When cohabiting heterosexual couples can sign up for a renewable or revocable fixed term contract to define the terms of their state-recognized relationship, then marriage, as an institution, could be weakened. Better, perhaps, (in terms of simplicity, fairness and social policy) to allow all who are up to taking on the heavy responsibilities of marriage, with its exclusivity and its “till death do us part” commitment, to do so — not lightly, but advisedly.
And so, the marriage paradox: Will the efforts to “defend” marriage ultimately reduce it to an irrelevancy? Or — perhaps decades from now, perhaps sooner — will we look back at the line of Washington cases from Singer v. Hara through Andersen and wonder what all the fuss was about?
Prof. Julie Shapiro teaches Family Law, Family Formation, Law and Sexuality, and Civil Procedure at Seattle University School of Law. Her family law blog, “Related Topics,” can be found at julieshapiro.wordpress.com.
1 In fact, if one spouse has a sex-change operation, that does not automatically invalidate the marriage.
2 New Jersey and California allow opposite-sex couples to register as domestic partners if both parties are over the age of 62; in Washington, only one opposite-sex partner must be over 62.
3 The federal Defense of Marriage Act prevents extension of federal benefits (such as Social Security survivor payments) to same-sex couples, whether they are legally married or in a civil union/domestic partnership.
4 A Stable Majority: Most Americans Still Oppose Same-Sex Marriage, The Pew Forum on Religion and Public Life, April 1, 2008.
5 Id.
Go Back